Endowment (Waqf) of the Tax (al-Kharaajiyyah) Land

প্রশ্ন · Question

Allah bless you and benefit us with your knowledge. Kindly our sheikh I
have two questions: The first: What is the evidence that in the
endowment (Waqf), it is required that the person who makes Waqf be
the owner of the Ayn (object) of the endowed property? Second: Are
there Shari’ rules other than the endowment (Waqf) that differentiate
the disposition of the ‘Ushriyyah land and the Kharajjiyah land? May
Allah bless us and our party in your life and health, and may Allah open
up at your hands.

উত্তর · Answer

Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
First: As to the issue of Waqf (endowment) in the Kharajjiyah land,
opinions differ among scholars:
1- Some of them allow the Waqf of what is made on the land of
buildings or crops, so if a person builds a school on the Kharajjiyah land
that he owns, he may make it a Waqf for students, or if he planted
olive trees for example, he may make its fruits Waqf for the poor and
needy on the condition that this Waqf is permanent:
The Kuwaiti Fiqh Encyclopedia states:
[Ibn Abidin reported from Al_Khassaf that he said: (The Waqf of shops
in the markets is permissible if the land was in the hands of those who
built it by leasing, and that the Sultan (the person with authority) does
not drive them out of them, and we saw them in the hands of the
building owners, and they inherited them and they divided them
among themselves. The Sultan does not interfere with them nor
bothers them, but they have yields which he takes from them and they

were passed around, fathers to ancestors, and ages have gone by and
they are in their hands selling them to one another, renting them to
one another, and they were included in their wills. They demolish the
buildings, rebuild them, and build others, so too the Waqf is
permissible). Ibn Abdeen said: He approved it in Al-Fath and the reason
is the continuation of perpetration.
And if what he had put on the ground is a plantation, then the ruling
on its Waqf would be the rule of building. But if what he did on the
ground was merely compressing the soil or composting, then it is not
valid to make it Waqf.]
2- Others permit Waqf on benefit (manfaʿah) even if it is a temporary
benefit. So, if a person rented a house for a period of one year, he may
make this house Waqf for those in need for the duration of the year
mentioned in the lease contract, or he may rent plantation for the
duration of the harvest and make it Waqf for the needy for the
duration of that crop according to the lease contract, meaning that
they permit Waqf on the benefit without the condition of being
permanent, but it can be a temporary benefit:
According to the Kuwaiti Fiqh Encyclopedia: The majority (jumhur) of
Ḥanafī, Shafi and Hanbali scholars view the impermissibility of Waqf on
benefit (manfaʿah) because they stipulate a condition that the
property given as a waqf (Mawqoof) should be something from which
benefit may be derived whilst its original essence remains, as well as
they put the condition of the perpetuation of Waqf (1) Maliki jurists
view the permissibility of Waqf on benefit, so if a person rented a
house for a period of time, it is permissible for him to make its benefits
Waqf in that period, and th e Waqf will cease upon the expiry of rent,
because according to them the perpetuation of the Waqf is not a
condition (2)
(1) Mughni, Al-Muhtaj 2/377, Sharh muntaha al -iradat 2/492, Al-Bada'i

6/220, Hashiya ibn 'Abidin 3/359 ... (2) Hashiyat Al -Dusuqi 'ala Al-sharh
Al-kabir 4/76, and Al-Sharh Al-Sagheer 2/298 T. Al-Halabi.] End
Second: There is an outweighed opinion that Waqf is not permissible
unless the land title (raqabah) is permanently owned by the person
making the Waqf (the Waqif). This is what we outweigh in this matter
according to the correct evidence in the matter, and here is the
explanation:
1- The following is stated in the explanation of Article 133 of The Draft
Constitution, Part 2:
(It is possible to trade and inherit ‘Ushriyyah and Kharajjiyah land from
its owners, because it is a literal possession belonging to its owner, and
so all the rules regarding possession apply to it. In relation to
‘Ushriyyah land this is clear, and as for the Kharajjiyah land, possession
of it is like the possessing the Ushriyyah land without any difference in
them from the angle of possession except for two issues: firstly with
respect to what it is that is owned and the secondly, with respect to
what is obligatory upon the land.
As for the issue of what it is that is possessed, the owner of the
‘Ushriyyah land possesses the land itself and its yields, while the owner
of the Kharajjiyah land possesses the yield alone. Consequently, if the
owner of the ‘Ushriyyah land wanted to give it as a charity, he is
permitted to do so any time he wishes. However, the owner of the
Kharajjiyah land is unable to do so, since in order to give anything as an
endowment, it is a condition that the person donating it owns the
object itself, and the own er of the Kharajjiyah land does not own the
land itself, but rather he owns its yields, since the title of the land itself
belongs to the Bayt Al-Mal.
As for the issue of what is obligatory upon the land, the 10 or 5 per
cent is applicable to the ‘Ushriyyah land; in other words, the Zakah
upon what was actually produced by the land if it reached maximum
applicable amount (Nisab). The land tax (Kharaj) is imposed upon the

Kharajjiyah land; in other words, the annual amount specified by the
state...) End. As you can see, Waqf is not permissible in the Kharajjiyah
land because Waqf requires the ownership of the land title of the
property itself, and the land title (raqabah) of the Kharajjiyah land
belongs to the Bayt Al -Mal, so the owner does not own the property
itself, but he owns its yields.
2- We have previously issued an Answer to Question on the subject, on
13/2/2019, which is what you may be referring to in your question,
which says: (... For example, Endowment (Waqf) requires the
ownership of the property to be endowed, Consequently, if the owner
of the ‘Ushriyyah land wanted to give it as a charity, he is permitted to
do so any time he wishes. However, the owner of the Kharajjiyah land
is unable to do so, since in order to give anything as an endowment, it
is a condition that the person d onating it owns the object itself, and
the owner of the Kharajjiyah land does not own the land itself, but
rather he owns its yields, since the title of the land itself belongs to the
Bayt Al-Mal.) End.
3- As for the evidence pertaining to the ownership of the land title
(raqabah) (the original property from which benefit is derived) as a
condition for the endowment (Waqf) to be valid, and it includes the
following:
- Al-Bukhari narrated in his Saheeh from Ibn Omar: (Omar acquired a
land at Khaibar. He came to the Prophet ﷺ and sought his advice in
regard to it. Omar said to the Prophet ﷺO Messenger of Allah, I
have got a land from Khaybar, and I have nothing that is more precious
to me than that. What do you command me to do with it?" The
Prophet ﷺ said,«صْلَهَا وَتَصَدَّقْتَ بِهَا
َ
إِنْ شِئْتَ حَبَسْتَ أ » “If you want you can
put aside the original land and give in charity from it” So, Omar gave
the land in charity (on the condition that the original land would
neither be sold nor given as a present, nor bequeathed, (and its yield)
would be used for the poor, the kinsmen, the emancipation of slaves,

Jihad, and for guests and travelers, and its administrator could eat in a
reasonable just manner, and he also could feed his friends without
intending to be wealthy by its means. I narrated this hadith to ibn
Sireen and he said: without storing the property with a view to
becoming rich").
- And al-Bukhari narrated in his Saheeh from Ibn Omar (In the lifetime
of Allah's Messenger ﷺOmar gave in charity some of his property, a
garden of date-palms called Thamgh. Omar said, "O Allah's Messenger
ﷺI have some property which I prize highly and I want to give it in
Sadaqah (charity)." The Prophet said,
«صْلِهِ لََ يُبَاعُ وَلََ يُوهَبُ وَلََ يُورَثُ وَلَكِنْ يُنْفَقُ ثَمَرُهُ
َ
تَصَدَّقْ بِأ » “Give the original
land in Sadaqah (i.e. as an endowment) on the condition that the
original land would neither be sold nor given as a present, nor
bequeathed, but the fruits are to be spent in Sadaqah.” So, Omar gave
it in charity, and it was for Allah's Cause, the emancipation of slaves,
for the poor, for guests, for travelers, and for kinsmen. The person
acting as its administrator could eat from it reasonably and fairly, and
could let a friend of his eat from it provided he had no intention of
becoming wealthy by its means.)
- As well as Muslim narrated in his Saheeh from Ibn Omar said: (Omar
acquired a land at Khaibar. He came to the Prophet ﷺ and sought his
advice in regard to it. Omar said to the Prophet ﷺO Messenger of
Allah, I have got a land from Khaybar, and I have nothing that is more
precious to me than that. What do you command me to do with it?”
He said, «صْلَهَا وَتَصَدَّقْتَ بِهَا
َ
إِنْ شِئْتَ حَبَسْتَ أ » “If you want you can put
aside the original land and give in charity from it”, Omar gave it
Sadaqah but the original is not to be sold nor given as a present, nor
bequeathed.” He said, “Omar gave it to the poor as Sadaqah, to the
relatives, to free slaves, and to the guest. There is no sin for one who
administers it if he eats something from it in a reasonable manner, or if
he feeds his friends and does not hoard up goods (for himself). He (the

narrator) said: I narrated this hadith to Muhammad, but as I reached
the (words)" without hoarding (for himself) out of it." he (Muhammad'
said:" without storing the property with a view to becoming rich." Ibn
'Aun said: He who read this book (pertaining to Waqf) informed me
that in it (the words are)" without storing the property with a view to
becoming rich...".)
Thus, the hadiths of the Prophet ﷺ are clear in stating that Waqf is the
confinement (putting aside) of the origin of ownership with access to
the benefit of it, and its confinement requires that the land title
(raqabah) of the property to be endowed is owned by the person who
is putting it aside, i.e., the endower (Waqif), before he puts it aside and
endow it, because a person cannot make waqf of a property that he
does not own. So putting aside a property is only the right of its owner
because it is a disposal in the land title (raqabah) of the thing. So, if the
land title (raqabah) of the property does not belong to a person, how
can he dispose of it by endowing it? Omar bin Al -Khattab (r.a) was the
owner of the title (raqabah) of what the Prophet ﷺ ordered him to put
it aside as it is in the hadiths above, because he (r.a): “acquired a land
at Khaibar. He came to the Prophet ﷺ and sought his advice in regard
to it. Omar said to the Prophet ﷺO Messenger of Allah, I have got a
land from Khaybar, and I have nothing that is more precious to me
than that. What do you command me to do with it? That is, he (may
Allah be pleased with him) possessed that land and it became his land,
that is he owned the land title itself, then he came to ask the Prophet
ﷺ about how to deal with it.
Therefore, it is clear from the hadeeth that indicates the legality of the
endowment that the endower must be the owner of the thing itself.
The Messenger ﷺ says as it is in the hadiths above:
«صْلَهَا
َ
إِنْ شِئْتَ حَبَسْتَ أ ...»،«صْلِهِ
َ
تَصَدَّقْ بِأ ...»،«صْلَهَا
َ
إِنْ شِئْتَ حَبَسْتَ أ »
“If you want you can put aside the original land ...”, “Give the original
land in Sadaqah...”, “If you want you can put aside the original land ...”,

and the title of the Kharajjiyah land belongs to the Bayt Al -Mal of the
Muslims, so its title is not possessed by its owner for the owner only
possesses its benefit, and since its owner does not own its title
because it is confined to the Bayt Al -Mal, so how then can he confine
its title?
4- This is what we outweigh and adopt due to the applicability of the
Shari’ evidence on it; that is, it is not permissible to endow the
Kharajjiyah land, but it is permissible to sell, donate, and give charity to
them or their price and all the works that are permissible according to
Shariah, except as we have said the endowment (Waqf), which
requires the ownership of the land title (raqabah) itself, and the title of
the Kharajjiyah land is owned by the Bayt Al-Mal.
Third: As for your question (Are there Shari’ rules other than the
endowment (Waqf) that differentiate the disposition of the ‘Ushriyyah
land and the Kharajjiyah land?).The answer to that is that we have not
found any other differences related to the disposition of the
Kharajjiyah and Ushriyyah land except for the two things mentioned
above, i.e. what is obligatory on the Ushriyyah land of Zakat and on the
Kharajjiyah land of Kharaj, and the second issue is the permissibility of
Waqf in the Ushriyyah land a nd non -permissibility of Waqf in the
Kharajjiyah land.
This is the most correct for us and what we adopt, and Allah Ta’ala
Knows Best and He is All-Wise.
Your brother,
Abu Yasin
21st Rabii’ II 1441 AH
18/12/2019 CE