Abu Dawud

1؎: By "Suwad" is meant the lands of the villages of Iraq which the Muslims acquired during the era of Umar radi Allahu anhu. These lands became famous by the name "Suwad" due to their date orchards and the lushness of their agriculture. Its length extends from Mosul to Abdan, and its width from Qadisiyyah to Hulwan. Imam Ibn al-Qayyim states that conquered lands are not included in the spoils of war (mal al-ghanima); the Imam (leader) has discretion regarding their management based on what is in the best interest (maslahah). The Messenger of Allah sallallahu alayhi wa sallam both distributed such lands and left some undivided. Umar radi Allahu anhu, by not dividing them, left them as they were and imposed a permanent land tax (kharaj) on them, which was used for the benefit of the soldiers. This is the meaning of the endowment (waqf) of this land (ard al-suwad); however, it is not the technical meaning of waqf, in which ownership cannot be transferred. Rather, it is permissible to sell this land, and this is the practice of the Ummah. There is consensus that it will be inherited, whereas in waqf, inheritance does not apply. Imam Ahmad has explicitly stated that this (ard al-suwad) can be given as a dowry (mahr), whereas it is not permissible to give waqf as a dowry. Also, the sale of waqf is prohibited, as is the transfer of its ownership, because those for whom it is endowed would not be able to benefit from it. The right of the soldiers is in the land tax (kharaj) of the land (ard al-suwad), so whoever purchases this land becomes entitled to its land tax, just as when something is with the seller, and when it is transferred to the buyer, its benefit is also transferred. Thus, by this sale, no Muslim's right is invalidated, just as it is not invalidated by inheritance, gift, or charity. (End of summary.) There is a difference of opinion regarding the lands which the Muslims acquired through war. Imam Ibn al-Mundhir says that Imam Shafi'i is of the view that Umar radi Allahu anhu obtained the consent of those mujahideen who conquered the region of Suwad and were entitled to a share in the spoils of war, and the ruling regarding land acquired by force is that it should be distributed, just as the Prophet sallallahu alayhi wa sallam distributed the land of Khaybar. Imam Malik says that the lands acquired as spoils of war should not be distributed but should remain as endowments (waqf), and from their revenue, the stipends of soldiers, construction of bridges, and other charitable works should be carried out. However, if the Imam at any time sees that the best interest (maslahah) requires its distribution, then he may distribute the land. Abu Ubayd has narrated in Kitab al-Amwal from Harithah ibn Mudarrib that Umar radi Allahu anhu intended to distribute the land of Suwad and consulted about it. Ali radi Allahu anhu said to him: Leave it for the general benefit of the Muslims. So he did not distribute it among the mujahideen but left it as it was. And from Abdullah ibn Abi Qays it is narrated that Umar radi Allahu anhu intended to distribute the land of Suwad, so Mu'adh radi Allahu anhu said to him: If you distribute it, its great wealth will go into the hands of a few people, and after their death, it will end up with one man or one woman, and when other needy Muslims come, they will get nothing. So choose a way by which all Muslims, those before and those after, may benefit. Thus, Umar radi Allahu anhu postponed the distribution of this land and imposed a tax on it for the benefit of both the mujahideen who received the spoils and those who would come after. (Awn al-Ma'bud Sharh Sunan Abi Dawud 8/194, 195)

2؎: Ardabb is the name of a measure.

3؎: That is, you will gain control over the wealth of these countries.

4؎: That is, all this wealth will be taken away from you.