Bukhari

Hadith Commentary:
What happened was that Abu Talib was the eldest son of Abdul Muttalib.
After his (Abdul Muttalib’s) death, in accordance with the custom of the Age of Ignorance (Jahiliyyah), Abu Talib took possession of all the property and estates.
When Abu Talib passed away, a few days after his death, the Messenger of Allah (sallallahu alayhi wa sallam) and Ali (radi Allahu anhu) migrated to Madinah Munawwarah, while Aqil had not yet embraced faith at that time and remained in Makkah.
He sold all the property and houses and squandered the money.
From this hadith, Imam Bukhari (rahimahullah) derived the purpose of the chapter in this way: that the Messenger of Allah (sallallahu alayhi wa sallam), even after the conquest of Makkah, upheld the sale of those houses and properties and acknowledged Aqil’s ownership. Thus, when Aqil’s transactions were validated before Islam, then after Islam, they would be validated all the more so.
And al-Qurtubi said: It is possible that what Imam Bukhari (rahimahullah) meant is that the Prophet (sallallahu alayhi wa sallam) showed favor to the people of Makkah regarding their wealth and homes even before they embraced Islam (Fath).
That is, perhaps Imam Bukhari’s (rahimahullah) intent was that the Messenger of Allah (sallallahu alayhi wa sallam) had already bestowed this favor upon the people of Makkah before their Islam, that their wealth and homes, in every circumstance, were acknowledged as their property; in this way, the houses were already granted to Aqil (radi Allahu anhu).
(sallallahu alayhi wa sallam)

Hadith Commentary:
➊
Abu Talib was the eldest son of Abdul Muttalib. According to the custom of the Jahiliyyah (pre-Islamic period), after the death of Abdul Muttalib, Abu Talib became the owner of all his property. Abu Talib’s two sons, Hazrat Ja’far (radi Allahu anhu) and Hazrat Ali (radi Allahu anhu), could not inherit his property because they had become Muslim. Aqil and Talib were disbelievers; after the death of Abu Talib, they became Muslim. Before embracing Islam, they sold all the property and houses and enjoyed the proceeds. The Messenger of Allah (sallallahu alayhi wa sallam), even after the conquest of Makkah, maintained the transactions of sale and purchase of those houses and properties and recognized Aqil’s ownership. When Aqil’s actions before Islam were validated, then after Islam, they would all the more so remain valid.

➋
The purpose of this heading and the presented hadith is to refute those who say that if a harbi (combatant non-Muslim) becomes Muslim in Dar al-Harb (the land of war) and remains there, and then the Muslims conquer that city, he will retain the right to all his property. However, immovable property, such as land and houses, will become fay’ (spoils for the Muslims), whereas the majority (jumhur) are against this position. The aforementioned hadith also supports the position of the majority. And Allah knows best.

Hadith Commentary:
It is narrated from Mujahid that all of Makkah is a sanctuary (mubah), and it is neither permissible to sell its houses nor to rent them out. The same is narrated from Ibn Umar radi Allahu anhu, and this is also the view of Imam Abu Hanifah rahimahullah and Sufyan al-Thawri rahimahullah. According to the majority of scholars, however, the houses and dwellings of Makkah are considered property, and after the owner's death, they become the property of the heirs.
This is also the opinion of Imam Abu Yusuf rahimahullah (the student of Imam Abu Hanifah rahimahullah), and Imam Bukhari rahimahullah has also adopted this view.
However, in the specific case of Masjid al-Haram, all Muslims have equal rights; whoever sits wherever, no one can remove him from there.
In the above verse, since the root of both ‘aakif’ and ‘ma’koof’ is the same,
the explanation of ‘ma’koof’ has also been given.
In the hadith of the chapter, there is mention of Aqil.
So, Abu Talib had four sons:
Aqil, Talib, Ja‘far, and Ali.
Ali and Ja‘far supported the Prophet sallallahu alayhi wa sallam and migrated with him to Madinah, but Aqil had not yet become Muslim.
Therefore, he became the sole heir to all of Abu Talib’s property.
He sold it off.
The Prophet sallallahu alayhi wa sallam referred to this, as mentioned here.
It is said that Aqil later became Muslim.
Dawudi said: Whoever migrated to Madinah, his relative who remained in Makkah would take possession of all his property.
The Prophet sallallahu alayhi wa sallam, after the conquest of Makkah, maintained these arrangements so that no one’s heart would be hurt.
It is said that these houses of Abu Talib were, after a long time, bought by Muhammad ibn Yusuf, the brother of the tyrant Hajjaj, for one hundred thousand dinars.
Originally, this property belonged to Hashim, from whom it passed to Abdul Muttalib.
He distributed it among all his sons.
Among this was also the share of the Prophet sallallahu alayhi wa sallam.
The verse mentioned at the beginning of the chapter was revealed in the early days of Islam in Madinah.
Allah the Exalted made the Muhajirun and Ansar heirs to one another.
Later, this verse was revealed:
﴿وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَى بِبَعْضٍ﴾ (al-Anfal: 75)
That is, relatives are more entitled to inheritance than others.
In any case, from this verse it is derived that believers can inherit from one another.
It is not mentioned here that a believer cannot inherit from a disbeliever, and perhaps Imam Bukhari rahimahullah alluded to this subject in what follows.
﴿وَالَّذِينَ آمَنُوا وَلَمْ يُهَاجِرُوا﴾ (al-Anfal: 72)
That is, those who have believed but have not migrated from the land of the disbelievers, you cannot be their heirs.
If you are not their heirs, then, all the more so, you cannot be heirs to the disbelievers.
(Wahidi)

Hadith Commentary:
(1)
Inheritance is applicable to the houses of Makkah Mukarramah because the right of ownership is established regarding them. Abu Talib, the chief, had four sons: Aqil, Talib, Ja‘far (radi Allahu anhum), and Ali (radi Allahu anhu). The latter two sons became Muslim. Talib was killed in the Battle of Badr. Aqil received all the property of his father, Abu Talib. Since this property originally belonged to Hashim, which was then transferred to Abdul Muttalib, he distributed it among all his sons. Among them was also the share of the father of the Messenger of Allah (sallallahu alayhi wa sallam), Abdullah, but the Prophet (sallallahu alayhi wa sallam) maintained these arrangements at the time of the Farewell Pilgrimage (Hajjat al-Wada‘) so that animosity would not arise among the people. The Prophet (sallallahu alayhi wa sallam) could have stayed in his father’s share, but since he had migrated for the sake of Allah, he did not consider it appropriate to stay there. Rather, what happened was that Aqil, in the Prophet’s absence, had also taken possession of his house and then sold it. Thus, the Prophet (sallallahu alayhi wa sallam) said: “When did Aqil leave any house for us that we could stay in it?”

(2)
In any case, it is established from the ahadith that before Islam, people’s right of ownership over the houses and lands of Makkah was recognized. Matters of inheritance, sale, and lease also took place, which continued after Islam as well. Thus, in the time of Sayyiduna Umar (radi Allahu anhu), Nafi‘ ibn ‘Abd al-Harith bought a house from Safwan ibn Umayyah in Makkah to make it a prison, on the condition that if Sayyiduna Umar (radi Allahu anhu) approved the purchase, the sale would be finalized; otherwise, Safwan would receive four hundred dinars as rent. (, Sahih al-Bukhari, al-Khusumat, Chapter: 8)

(3)
Imam Bukhari (rahimahullah), through the chapter heading and the narrations presented, intends to point towards the weakness of those ahadith which prohibit the sale or leasing of buildings in Makkah Mukarramah. (Fath al-Bari: 3/568) Imam Ibn Khuzaymah (rahimahullah) writes that if the term “Masjid al-Haram” correctly applies to the entire Haram, then it would not be permissible to dig a well, make a grave, urinate or defecate, have marital relations, or throw carrion and foul things within the Haram. To our knowledge, no scholar has prohibited these acts within the Haram, nor has anyone restricted a menstruating woman or a person in a state of major ritual impurity (janabah) from entering the boundaries of the Haram. Furthermore, if this were the case, then it would also be permissible to perform i‘tikaf (spiritual retreat) in the houses and shops of Makkah, and no one holds this view. (Fath al-Bari: 3/569)

At the end of the hadith, Imam Bukhari (rahimahullah) has narrated from ‘Umar (radi Allahu anhu) that a Muslim cannot inherit from a disbeliever. He has also narrated this as a marfu‘ hadith (attributed directly to the Prophet). (, Sahih al-Bukhari, al-Fara’id, Hadith: 6764)

Hadith Commentary: Benefits and Issues: There is a difference of opinion regarding the houses and lands of Makkah: whether inheritance will apply to them, and whether their buying and selling or renting them out is permissible or not. There are two reasons for this difference.

➊ Was Makkah conquered through reconciliation (sulh) or through war and force? If it was conquered by force and power, then the houses of Makkah belonged to the Muslims, or they were given to the people of Makkah as a favor.

➋ Regarding "al-Masjid al-Haram": does it refer to the House of Allah (Baytullah) or the entire area of the Haram? Also, regarding:
﴿سَوَاءً الْعَاكِفُ فِيهِ وَالْبَادِ ۚ﴾ "Those who reside therein and those who come from outside are equal," does it mean they are equal in safety and respect, or equal in every matter?

For this reason, Usamah radi Allahu anhu asked the Prophet sallallahu alayhi wa sallam at the time of the conquest of Makkah: where would you stay? The Prophet sallallahu alayhi wa sallam replied: Aqil has sold all the houses of the emigrants from Banu Abd al-Muttalib, because at the time of Abu Talib’s death, both Aqil and Talib were disbelievers. Therefore, both became heirs, and Aqil accepted Islam after the Treaty of Hudaybiyyah, and Abu Talib became the heir of Abd al-Muttalib. According to the principles of the Jahiliyyah, being the eldest son, all the property of Abd al-Muttalib was with him. That is why the Prophet sallallahu alayhi wa sallam used to stay in the house of Abu Talib.

At the time of Hajj, Usamah radi Allahu anhu thought that perhaps after the conquest of Makkah, the Prophet sallallahu alayhi wa sallam had taken back his house.

According to Imam Nawawi rahimahullah, Imam Shafi’i rahimahullah, and their followers, Makkah was conquered through reconciliation. Therefore, its houses remained in the ownership of the residents of Makkah. And their ruling is like that of other cities: inheritance will apply to them, and for them, selling, mortgaging, renting, gifting, making bequests regarding them, and all other transactions are valid.

But according to Imam Abu Hanifah rahimahullah, Malik rahimahullah, Awza’i rahimahullah, and some other jurists, Makkah was conquered by force, so all these transactions are impermissible. (Sahih Muslim, vol. 1, p. 436)

However, it is stated in al-Durr al-Mukhtar:
(Wa jaaza bay‘a bina’i buyuti Makkata wa ardhaha bila karahatin wa bihi qala al-Shafi‘i wa bihi yufta) (Fath al-Mulhim 3/387)
Selling the buildings and land of Makkah is permissible without dislike. This is the statement of Imam Shafi’i rahimahullah, and upon this is our fatwa. The author of Lam‘ al-Dari has also attributed this view to the two companions (of Abu Hanifah), and there is also a narration from Imam Abu Hanifah rahimahullah to this effect:
(Li-annahā ‘indana mamlūkatu li-ahliha)
Because they are owned by the people of Makkah. (vol. 5, p. 173)

Hafiz Ibn Qayyim rahimahullah has emphasized that every kind of transaction regarding the buildings of Makkah is permissible, whether it is buying and selling, gifting, inheritance, or renting. However, if the building collapses, then with regard to the empty land alone, no kind of transaction is valid.

Benefits and Issues:
Benefit: At the time of Abu Talib’s death, Aqil had not embraced Islam; for this reason, he alone became his heir.
Whereas Ali (radi Allahu anhu) and Ja’far (radi Allahu anhu) had already become Muslims.
Therefore, due to the difference of religion, they did not inherit from their father.
And as soon as Aqil became the owner of Abdul Muttalib’s property,
he sold it.

Benefits and Issues:
(1)
In this incident, the pact between the tribes that is mentioned is the very reason why Banu Hashim had to remain in the valley of Banu Hashim, also known as the Valley of Abu Talib, for three years.

(2)
For further benefits, see (Hadith: 2730).