Fiqhi Rulings and Issues in the Light of Quran and Hadith, Kitab al-Buyu: Volume 02: Page 141
Rulings on Cultivating Uninhabited Land
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
Cultivating uninhabited land means that a Muslim cultivates land that is not owned by any individual nor designated for any collective need, for example, by planting trees, constructing a house, or digging a well. In this way, the person becomes entitled to and the owner of that land.
Two points become clear from this definition:
① If a piece of land is under the Shariah and legal ownership of a Muslim or a non-Muslim, whether acquired through purchase or gift, etc., merely cultivating it does not make another person its owner.
② If a piece of land is associated with a collective public interest, for example, if it is a public pathway, a place for people to sit, a water spring, a place for rainwater to flow, or if its settlement affects the collective needs of the townspeople, such as a cemetery, a garbage dumping site, an Eidgah, a place for people to collect firewood, or a grazing area, then no person can become the owner by planting trees or building on it. However, if a deserted piece of such land does not belong to anyone and a person settles it, then he will become its owner. It is narrated from Sayyiduna Jabir رضي الله تعالى عنه that the Messenger of Allah صلی اللہ علیہ وسلم said:
"مَنْ أَحْيَا أَرْضًا مَيْتَةً فَهِيَ لَهُ "
"Whoever cultivates a deserted land, it belongs to him."
Reference: Jami' at-Tirmidhi, Ahkam, Chapter on Reviving Dead Land, Hadith 1379 and Musnad Ahmad 3/381
Imam Tirmidhi, may Allah have mercy on him, has declared this hadith authentic. Many other hadiths on the same subject have also been reported, some of which are present in Sahih Bukhari as well.
According to Islamic jurists, the one who cultivates barren land is considered its owner, although there is some difference in the conditions for this. However, regarding the Haram and Arafat, the opinion of the jurists is that the one who plants trees or builds there will not become the owner, because it would cause hardship for those performing the Hajj rituals, and in such places, the rights of all people are equal.
① In what cases is the cultivation of barren land established?
❀ The cultivation of barren land will be established in the following cases:
✔ 1. If a person has planted trees in barren land or fenced it off, then this will be considered as cultivating it. The Messenger of Allah, peace and blessings be upon him, said:
"من أحاط حائطا على أرض فهي له"
"Whoever builds a wall or erects a fence on a barren land will be considered its owner."
Reference: Sunan Abi Dawood Al-Kharaj, Chapter on Reviving Dead Lands, Hadith 3077 and Musnad Ahmad 3/381
However, ownership of barren land will only be established when it has actually been cultivated, for example, by planting trees, building houses, or digging a well for water.
It should be remembered that merely establishing visible signs, or constructing a small enclosure of soil or bricks that does not serve as a barrier from all sides, or just digging around the area, will not prove the cultivation and ownership of the land. Yes, this will at least give the person a preferential right over others. And until the land is properly and genuinely cultivated, he cannot sell it.
✔ 2. If someone digs a well in barren land and reaches water through it, it is as if he has cultivated the land; otherwise, he will not be the owner. Yes, in this case, his right will take precedence over others because he has initiated the cultivation.
✔ 3. If someone brings spring or canal water to barren land, he has also cultivated the land, because bringing water is more beneficial for the land than merely building a wall.
✔ 4. If a place was uncultivable and uninhabited due to water accumulation, and then someone removes that water and makes it cultivable, this will also be considered cultivation, and therefore he will be the owner of that land. This is because bringing water or removing stagnant water is more beneficial than building a wall, while the hadith also mentions building a wall, and here he has made the signs of settlement and ownership more evident.
Some scholars are of the opinion that there are no specific signs or defined conditions for cultivating barren land; rather, it depends on custom. That is, the situations which people commonly consider as cultivation of land will be regarded as cultivation, and on this basis, ownership will be established, otherwise not. This is the position of most Hanbali scholars and others. Their argument is that Shariah has not prescribed any special conditions for ownership, therefore the ruling on cultivation of land will be according to common custom.
② Distribution of barren land by the ruler
The ruler has the right to distribute barren and uncultivated land among those who have the ability to cultivate it.
The Messenger of Allah, peace be upon him, appointed Sayyiduna Bilal bin Harith, may Allah be pleased with him, as the assistant of (Al-Qabaliyah).
Reference: Sunan Abi Dawood, Al-Kharaj wal-Fay wal-Imarah, Chapter on the Granting of Lands, Hadith 3061
Similarly, Sayyiduna Wail bin Hujr, may Allah be pleased with him, was granted the land of Hadramaut.
Reference: Sunan Abi Dawood, Al-Kharaj wal-Fay wal-Imarah, Chapter on the Granting of Lands, Hadith 3058, 3059
Similarly, some lands were also allotted to Sayyiduna Umar رضي الله تعالى عنه, Sayyiduna Uthman رضي الله تعالى عنه, and other noble companions رضوان الله عنهم أجمعين.
If a person to whom the allotment is given cultivates the land, then he will be its owner; otherwise, the ruler should take the land back from him and give it to someone who has the ability to cultivate it, because Sayyiduna Umar رضي الله تعالى عنه took back lands from those who could not cultivate them.
③ The ruling on precedence in other permissible things
Apart from uncultivated land, in other permissible items, such as a hunted animal or firewood, the principle is that the person who acquires it first has the greater right to it.
④ The ruling on the distribution of water from a canal or valley
If a canal or valley water passes near people's lands, the person upstream will benefit from it first and hold the water up to his ankles in his field, then let it flow to his neighbor. This sequence will continue until the end of the fields, unless the water runs out beforehand. Because the Prophet Muhammad ﷺ said:
"اسْقِ يَا زُبَيْرُ، ثُمَّ احْبِسِ المَاءَ حَتَّى يَرْجِعَ إِلَى الجَدْرِ، ثُمَّ أَرْسِلِ المَاءَ إِلَى جَارِكَ"
"Zubair! Water your field until it reaches the posts, then let it flow to your neighbor."
Reference: Sahih al-Bukhari, Al-Masāqāt, Chapter on Water Rights, Hadith 2359, 2360. And Sahih Muslim, Al-Fadā'il, Chapter on the Obligation to Follow Him, Hadith 2357
Imam Zahri, may Allah have mercy on him, says: We reflected on the statement of the Messenger of Allah, peace be upon him: "Hold back the water until it reaches the bunds," and it became clear that the water in the field would reach up to the ankles, meaning that people, having understood this incident, also took water up to their ankles. Then this was adopted as the standard of rights, that the first right to water is for the one whose field is upstream, and then for the one whose field is next.
From this narration, it is clear that the first person's right is to collect water up to his ankles in his field, and then the right belongs to those who come after.
It is narrated from Sayyiduna Amr bin Shu'aib, may Allah have mercy on him:
The Messenger of Allah, peace be upon him, ruled regarding the floodwaters of "Mahrooz" (a famous valley in Madinah Munawwarah) that the person who is near and above should first stop the water and benefit from it until the water accumulates up to the ankles, then the person on the upper land should leave water for the person on the lower land.
Reference: Sunan Abi Dawood Al-Qada Bab Fi Al-Qada Hadith 3639 and Al-Muwatta Imam Malik, Al-Aqda Bab Al-Qada Fi Al-Miyah, Hadith 1491
⑤ Ruling on Shared Water
If more than one person owns the water, they should divide it among themselves according to their ownership shares, and each person should take their share of the water by mutual consent and use it as they wish.
⑥ Ruling on Preserving Pasture
The ruler has the right to reserve pastures for the livestock of Bayt al-Mal, such as horses and animals prepared for Jihad, or camels for Sadaqah, etc. However, he should not trouble or burden the Muslims. It is narrated from Sayyiduna Ibn Umar, may Allah be pleased with him:
"أن النبي صلى الله عليه وسلم حمى النقيع لخيل المسلمين"
"The Prophet, peace be upon him, designated 'Naqee' pasture for the Muslims' horses."
Reference: Musnad Ahmad: 2/155
Similarly, it is appropriate for the ruler to reserve the grass and fodder growing in deserted places for the camels of charity, the horses of the Mujahideen, the animals for Jizya, and generally lost horses and camels, etc., provided there is a genuine need and it does not cause hardship or inconvenience to the common Muslims.
"Juaalah" Rulings
In the dictionary, "Juaalah" refers to something given to someone in return for performing a task. In Islamic terminology, "Juaalah" refers to a specified amount of wealth designated for an unspecified person who performs a particular task. For example, if someone says: "Whoever builds this wall for me, I will give him this amount." Now, whoever builds this wall will be entitled to that wealth.
① Evidence for the Permissibility of Juaalah
The permissibility of "Juaalah" is evidenced by the command of Allah Almighty:
"وَلِمَن جَآءَ بِهِۦ حِمْلُ بَعِيرٍۢ وَأَنَا۠ بِهِۦ زَعِيمٌ"
"And whoever brings it, there will be for him a camel's load of grain, and I am the guarantor of the promise."
Reference: Yusuf 12/72
The narration of Sayyiduna Abu Saeed Khudri, may Allah be pleased with him, is evidence for the permissibility of "عَنْ أَبِي سَعِيدِ الْخُذْرِيّ رضي الله تعاليٰ عنه أَنَّ رَهْطًا مِنْ أَصْحَابِ رَسُولِ اللهِ صلي الله عليه وسلم انْطَلَقُوا فِي سَفْرَةٍ سَافَرُوهَا حَتَّى نَزَلُوافِي حَيٍّ مِنْ أَحْيَاءِ الْعَرَبِ فَاسْتَضَافُوهُمْ فَأَبَوْا أَنْ يُضَيِّفُوهُمْ فَلُدِغَ سَيِّدُ ذَلِكَ الْحَيِّ فَسَعَوْا لَهُ بِكُلِّ شَيْءٍ لَا يَنْفَعُهُ شَيْءٌ فَقَالَ بَعْضُهُمْ: لَوْ أَتَيْتُمْ هَؤُلَاءِ الرَّهْطَ الَّذِينَ قَدْ نَزَلُوا بِكُمْ لَعَلَّهُ أَنْ يَكُونَ عِنْدَ بَعْضِهِمْ شَيْءٌ فَأَتَوْهُمْ فَقَالُوا: يَا أَيُّهَا الرَّهْطُ إِنَّ سَيِّدَنَا لُدِغَ فَسَعَيْنَا لَهُ بِكُلِّ شَيْءٍ لَا يَنْفَعُهُ شَيْءٌ فَهَلْ عِنْدَ أَحَدٍ مِنْكُمْ شَيْءٌ؟ فَقَالَ بَعْضُهُمْ: نَعَمْ وَاللهِ إِنِّي لَرَاقٍ وَلَكِنْ وَاللهِ لَقَدْ اسْتَضَفْنَاكُمْ فَلَمْ تُضَيِّفُونَا فَمَا أَنَا بِرَاقٍ لَكُمْ حَتَّى تَجْعَلُوا لَنَا جُعْلًا فَصَالَحُوهُمْ عَلَى قَطِيعٍ مِنْ الْغَنَمِ فَانْطَلَقَ فَجَعَلَ يَتْفُلُ وَيَقْرَأُ الْحَمْدُ لِلهِ رَبِّ الْعَالَمِينَ حَتَّى لَكَأَنَّمَا نُشِطَ مِنْ عِقَالٍ فَانْطَلَقَ يَمْشِي مَا بِهِ قَلَبَةٌ قَالَ: فَأَوْفَوْهُمْ جُعْلَهُمْ الَّذِي صَالَحُوهُمْ عَلَيْهِ فَقَالَ بَعْضُهُمْ: اقْسِمُوا فَقَالَ الَّذِي رَقَى: لَا تَفْعَلُوا حَتَّى نَأْتِيَ رَسُولَ اللهِ صلي الله عليه وسلم فَنَذْكُرَ لَهُ الَّذِي كَانَ فَنَنْظُرَ مَا يَأْمُرُنَا فَقَدِمُوا عَلَى رَسُولِ اللهِ صلي الله عليه وسلم فَذَكَرُوا لَهُ فَقَالَ: وَمَا يُدْرِيكَ أَنَّهَا رُقْيَةٌ؟ أَصَبْتُمْ اقْسِمُوا وَاضْرِبُوا لِي مَعَكُمْ بِسَهْمٍ. » " according to the Sunnah of the Messenger of Allah, peace be upon him. He said:
Abu Saeed Khudri (may Allah be pleased with him) says that a few companions of the Messenger of Allah (peace be upon him) set out on a journey which they had to complete. On the way, they camped in a tribe of Arabia and wanted the tribe members to host them, but they refused. Then the chief of that tribe was bitten by a scorpion. They tried every possible way to cure him, but no one could help. Finally, one of them said, "Go to those people who have camped in your tribe; maybe one of them has the skill of ruqyah (spiritual healing)." So they came to the companions and said, "O people, our chief has been bitten by a scorpion. We have tried every possible way to cure him, but no one could help. Does anyone among you have the skill of ruqyah?" One of the companions (Abu Saeed Khudri, may Allah be pleased with him) said, "Yes, by Allah, I know how to perform ruqyah. But we told you to host us (we are travelers), and you refused. Therefore, I will not perform ruqyah until you agree to pay me for it." So they agreed on some goats (30) as payment. Then this companion (may Allah be pleased with him) set out, spitting on the ground and reciting "Alhamdulillahi Rabbil 'Alamin" (Surah Al-Fatiha). By its blessing, it was as if the scorpion's sting was loosened, and the chief began to walk as if he had no pain. It is narrated that, as promised, the tribe members paid the companions the agreed payment (30 goats). Some people said, "Divide them among yourselves." But the one who performed the ruqyah said, "Not yet. First, we will present ourselves before the Messenger of Allah (peace be upon him), explain the whole situation to him, and then see what the Prophet (peace be upon him) commands us." So all of them presented themselves before the Prophet (peace be upon him) and mentioned this. He said, "How did you know that ruqyah could be done for this? You did well. Go and divide them, and keep a share for me as well."
Reference: Sahih al-Bukhari, Al-Ijarah, Chapter: What is given for ruqyah on the living Arabs with Surah Al-Fatiha, Hadith 2276. Sahih Muslim, As-Salam, Chapter: Permissibility of taking payment for ruqyah with Quran and supplications, Hadith 2201
② Who is entitled to the specified wage (juaalah)?
If a person performs the work after knowing that a specific wage has been set for it, then upon completion of the work, he will be entitled to the wage. And if a group starts doing the specified work, the wage amount will be equally divided among them.
If a person starts the work on his own without knowing that a wage has been set for it, he will not be entitled to the wage, because he did work which he was not permitted to do. However, if during the work he becomes aware of it, then he will be entitled to the wage for the work done after gaining that knowledge.
③ Difference between juaalah and ijarah
"Juaalah" and ijarah (hiring for a wage) differ from each other in the following matters:
① For the validity of "juaalah," it is not necessary that the worker be aware of the work for which the juaalah has been set, unlike ijarah. In ijarah, it is a condition that the worker is aware of the work for which the wage has been agreed upon.
② In "Ju'alah," the duration of the work is not specified, whereas in Ijarah, the period of work is specified.
③ In "Ju'alah," it is permissible to combine both the duration and the work, for example, if someone says: "Whoever stitches this cloth within one day will receive so many rupees." If he completes the stitching within the specified day, he will be entitled to the reward; otherwise, not. This is unlike wages, because in that case, combining both the work and the duration is not correct.
④ In "Ju'alah," the worker does not take responsibility for completing the work, whereas in Ijarah, the worker takes upon himself the responsibility of performing a certain task.
⑤ In "Ju'alah," the appointment of the worker is not a condition, whereas in Ijarah, this condition exists.
⑥ "Ju'alah" is a contract that either party can terminate without the other's permission, unlike Ijarah, because it is binding on both parties, so one party cannot terminate it without the other's consent.
④ The ruling on working without permission or without reward
The jurists have mentioned that a person who does someone's work without any predetermined reward and without the owner's permission is not entitled to any compensation or reward. This is because he started the work as a voluntary act, and therefore he is not entitled to a reward. For what a person has not obligated himself to, he does not receive. However, there are two exceptions to this:
✔ 1. When a laborer or worker has always kept himself ready to work for wages, such as a broker or a common laborer. When such a person works for an owner with his permission, he will be entitled to wages. But if he has not kept himself ready for labor, he will not be entitled to wages, even if he worked with the owner's permission. However, if compensation was agreed upon between the two before the work, then he will be given compensation.
✔ 2. A person who risks their life or effort to save a person or their property from destruction and ruin, for example, saving someone from drowning in a river, rescuing someone from a fire, or saving from any other dangerous situation, is entitled to a customary wage, even if they did this without the owner's permission. Because if they had not taken this action, the item or property would have been lost and the owner would have gained nothing. Also, paying wages encourages those who undertake such difficult tasks.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "Whoever saves someone's property from destruction and returns it to its owner is entitled to a wage, even if there was no prior agreement. Of the two opinions, this one seems more correct. And this is also the established view of Imam Ahmad, may Allah have mercy on him."
Reference: Majmoo' al-Fatawa 30/415
Imam Ibn al-Qayyim, may Allah have mercy on him, says: "Whoever deals with someone else's property without their permission for the purpose of delivering the property to its owner, or to protect the owner's property, or to prevent it from being lost, the correct ruling is that he should be paid wages for this work. Imam Ahmad, may Allah have mercy on him, has explicitly stated this on several occasions."
Reference: I'lam al-Muwaqqi'in 2/379
Rulings of "Luqatah"
"Luqatah" refers to a lost item that has been separated from its owner.
It should be remembered that Islam teaches the protection and care of property, and instructs Muslims on the sanctity and safeguarding of wealth. Among these teachings is the concept of "Luqatah."
① Ruling on a small lost item
If the fallen item is of a minor nature and ordinary average people do not care about it, such as a whip, bread, a single fruit seed, a stick, etc., then it is permissible to pick it up and use it immediately without announcement. It is narrated from Sayyiduna Jabir رضي الله تعالى عنه:
"رَخَّصَ لَنَا رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَآلِهِ وَسَلَّمَ فِي العَصَا وَالسَّوْطِ وَالحَبْلِ وَأَشْبَاهِهِ يَلْتَقِطُهُ الرَّجُلُ يَنْتَفِعُ بِهِ"
"The Messenger of Allah صلى الله عليه وسلم permitted us regarding lost sticks, whips, ropes, etc., that a person may pick them up and benefit from them."
Reference: (Weak) Sunan Abi Dawood Al-Qittah, Chapter on Defining Al-Qittah, Hadith 1717
② Animals and items that are forbidden to catch
Those animals that are protected from small predators because they are strong and large, such as camels, horses, cows, mules, etc., or those that fly, such as pigeons, or those that run very fast, such as deer, or those that can defend themselves with their claws, such as cheetahs, it is not permissible to catch such animals. The one who catches them will not become their owner even after announcement.
So when the Prophet Muhammad ﷺ was asked about a lost camel, he ﷺ said:
"مَا لَكَ وَلَهَا، مَعَهَا سِقَاؤُهَا، وَحِذَاؤُهَا تَرِدُ الْمَاءَ، وَتَأْكُلُ الشَّجَرَ حَتَّى يَلْقَاهَا رَبُّهَا"
"Why do you catch it? It has its water skin (large belly) and its shoe with it; it will drink water and eat leaves from the trees by itself until its owner rears it."
Reference: Sahih al-Bukhari, Knowledge, Chapter on Anger in Advice and Teaching When Seeing What is Disliked, Hadith 91; Sahih Muslim, The Cat, Chapter on Knowing the Boundaries and Guardianship and the Ruling on Lost Sheep and Camels, Hadith 1722, wording as given
Sayyiduna Umar رضي الله عنه said: "Whoever catches a lost animal (camel, etc.) is misguided."
Reference: Al-Sunan al-Kubra by Al-Bayhaqi 6/191
Meaning he is making a mistake, so it should never be caught.Besides these animals, large-sized items are also included in this ruling, such as a large cooking pot, iron, a heavy amount of wood, etc., or something that can remain safe in its place by itself, with no fear of being lost or moved from its place, then lifting or catching it is not permissible.
③ Ruling on Common Lost Property and Small Animals
If the lost property is of a common nature, such as cash, common goods, or small animals that cannot defend themselves from predators, like a goat, calf, camel calf, etc., then the person who finds such an item or animal, if confident in their honesty and trustworthiness, may take it. Such items and animals are divided into three categories:
First Category
Those animals whose meat is eaten, such as a camel calf, goat, chicken, etc. For the person who catches these lost animals, there are three options, and the one that benefits the owner the most should be chosen:
① Slaughter it and eat it, and later when the owner is found, pay them its current value.
② Memorize the distinctive marks of the animal for identification, then sell it and keep the price safe to give to the owner when found.
③ Protect the animal, and spend on it as needed so that it remains safe. Do not consider yourself its owner. If the owner comes, hand over the animal to him and recover the expenses incurred on it.
Because when the Prophet Muhammad ﷺ was asked about a lost goat, he said:
"خُذْهَا فَإِنَّمَا هِيَ لَكَ، أَوْ لِأَخِيكَ، أَوْ لِلذِّئْبِ"
"Catch it; it is either yours, your brother's, or the wolf's."
Reference: Sahih al-Bukhari, The Goat, Chapter on Lost Sheep, Hadith 2428. And Sahih Muslim, The Goat, Chapter on Knowing the Boundaries and Trusteeship and the Ruling on Lost Sheep and Camels, Hadith 1722, and the wording is his
Ibn Qayyim, may Allah have mercy on him, explains this hadith by saying: This hadith permits taking a lost goat. If the owner of the goat does not come, it becomes the property of the one who took it. In this situation, he has the option to eat it and pay the owner its price, or sell it and keep the price safe, or protect it and spend from his own wealth on it. Scholars unanimously agree that if the owner of the goat comes and the taker has not eaten it, then the owner has a stronger right to take it.
Second Type
Things that are likely to spoil, such as watermelon or other fruits. The one who takes such items should either use them himself and later pay the owner their price, or sell them and keep the price safe for the owner.
Third Type
Common goods and items that do not fall into the first two categories, such as cash or utensils. These items should be kept safely as a trust and announced and introduced in places where people gather.
④ Condition for the finder of lost property
The person who picks up a lost item should be one who is trusted for their honesty and also has the courage to announce and introduce it; otherwise, they should not pick it up. Because it is narrated from Sayyiduna Zaid bin Khalid Al-Juhani رضي الله تعالى عنه that the Messenger of Allah صلى الله عليه وسلم was asked about lost gold or silver, and he صلى الله عليه وسلم said:
"عَنْ زَيْدِ بْنِ خَالِدٍ الْجُهَنِيِّ، أَنَّهُ قَالَ: جَاءَ رَجُلٌ إِلَى النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، فَسَأَلَهُ عَنِ اللُّقَطَةِ -[1347]-، فَقَالَ: «اعْرِفْ عِفَاصَهَا وَوِكَاءَهَا، ثُمَّ عَرِّفْهَا سَنَةً، فَإِنْ جَاءَ صَاحِبُهَا، وَإِلَّا فَشَأْنَكَ بِهَا»، قَالَ فَضَالَّةُ الْغَنَمِ؟ قَالَ: (لَكَ، أَوْ لِأَخِيكَ، أَوْ لِلذِّئْبِ)"
"Keep the rope that ties that (found) thing and its bag identifiable, then announce it for a year. If the owner who recognizes it comes, give it to him; otherwise, you may use it. Still, that item will remain a trust with you. If the owner comes at any time, give him that item or its price." Then he asked the Prophet ﷺ about a lost camel, and he said: "What concern is it of yours? It has a water skin for water, its legs are strong, it will get water from the pond and eat the leaves of the trees until its owner comes and catches it." Then he asked about a lost goat, and he said: "Then catch it; it is either yours or your brother's, or its owner will become so, or a wolf will eat it."
Reference: Sahih al-Bukhari, Knowledge, Chapter on Anger in Advice and Teaching, Hadith 91; Sahih Muslim, The Cat, Chapter on Recognizing the Rope and the Trustee and the Ruling on Lost Property and Camels, Hadith 1722
The words "عِفَاصَ" and "وِكَاءَ" mentioned in the hadith mean: a bag and the rope or string that ties its mouth. And the word "ثُمَّ عَرِّفْهَا سَنَةً" in the hadith means that the lost item should be announced for a full year. The method is to announce it in places where people gather, such as camps, markets, mosque doors, and public assemblies. Announcements should be made daily during the first week, as the owner is most likely to come within this period. After that, announcements should be continued periodically according to custom.
⑤ Necessary rulings regarding lost property
① From the words of the mentioned hadith, it is clear that announcing and introducing a lost item is obligatory until its owner comes forward. If the owner correctly describes its characteristics, the item should be handed over to him; otherwise, it should not be given.
② From this hadith, it is also understood that after announcing for one year, the person who found the item can become its owner, but before using it, it is necessary to carefully memorize or record the bag, strap, quantity, type, and other distinguishing features. If after the year the original owner comes and correctly describes the features, it must be returned to him, because this is the command of the Messenger of Allah, peace be upon him.
③ If someone finds a lost item, they should not try to pick it up unless they trust their honesty and integrity and have the ability to announce it until the owner is found. If they feel their trust is at risk, it is not permissible for them to pick up the item. If they do pick it up, they will be considered a usurper, because they took someone else's property in a way that was not permissible for them, and there is also a risk of loss to another's property.
④ Before taking a lost item, carefully remember or note the characteristics of its container, bag, or strap, as well as its quantity, material, and type. This is necessary because the Prophet Muhammad ﷺ has commanded it, and an absolute command implies obligation.
⑤ After picking up a lost item, it is obligatory to announce it for a full year. During the first week, announce it daily, then announce it periodically according to custom. For the announcement, stand in markets, public gatherings, and at the doors of mosques to inform people that if anyone has lost something, they should inquire. However, do not make announcements inside the mosque, for example, on speakers, because mosques were not built for such purposes. The Messenger of Allah ﷺ said:
"من سمع رجلاً ينشد ضالة في المسجد فليقل لا ردها الله عليك فإن المساجد لم تبن لهذا"
"Whoever you hear announcing a lost item in the mosque, say: May Allah not return your item to you, because mosques were not built for this purpose."
Reference: Sahih Muslim, The Book of Mosques, Chapter on Prohibition of Seeking Lost Items in the Mosque... Hadith: 568
⑥ When the seeker of the lost item comes and describes the correct signs, the item should be given to him without demanding proof or taking an oath. The Prophet ﷺ also ordered the same. Describing the correct signs serves as a substitute for testimony and oath; in fact, sometimes these signs are clearer and more truthful than proof and oath. Additionally, any increase or decrease connected or separate to that item should also be returned with it. However, if the seeker cannot describe the correct signs, the item should not be handed over to him, because it is a trust, and it is not permissible to give a trust to a person whose ownership is not established.
⑦ If the owner does not come even after one year of announcement, the item will become the property of the person who picked it up, but it is necessary for him to preserve all its identifying features before spending it. If the owner later comes and correctly describes the attributes, then if the exact item is still available, it should be returned, and if it has been disposed of, its equivalent should be given, because its ownership was temporary like that of a custodian and guardian, which ended when the original owner arrived.
⑥ The ruling on lost items in the Haram of Makkah
There is a difference of opinion among scholars regarding a lost item in the Haram of Makkah, whether the person who picks it up becomes its owner after announcing it for one year or not?
Some scholars say that the one who picks it up after the specified period, i.e., one year, will be its owner, because the evidences are general. While the opinion of other scholars is that he will not become its owner nor will he bring it under his control, but will always announce it, because the Prophet Muhammad, peace be upon him, said regarding Makkah Al-Mukarramah:
"لَا تَحِلّ لُقَطَتهَا إِلَّا لِمُنْشِدٍ"
"It is not permissible to pick up a lost animal except for the person who wants to introduce it."
Reference: Sahih al-Bukhari, Al-Qutta, Chapter: How to identify the lost property of the people of Makkah? Hadith 2433
Shaykh al-Islam, may Allah have mercy on him, preferred this position. He said: "The one who picks up lost property in the Haram will never become its owner, rather it is always necessary to announce it."
Reference: Al-Fatawa al-Kubra, Chapter on Deposits: 5/423
And the apparent meaning of the hadith also supports this.⑦ Ruling on a stray animal
If a person leaves an animal in a desolate place because it is no longer able to keep up with the herd, or the owner is unable to take it along, then the one who catches such an animal becomes its owner. Because in the hadith:
"مَنْ وَجَدَ دَابَّةً قَدْ عَجَزَ عَنْهَا أَهْلُهَا أَنْ يَعْلِفُوهَا فَسَيَّبُوهَا، فَأَخَذَهَا فَأَحْيَاهَا فَهِيَ لَهُ"
"Whoever finds an animal whose owner is unable to feed it and has left it, then someone catches it, feeds it, and keeps it alive, it belongs to that person."
Reference: Sunan Abi Dawood, Al-Buyu, Chapter on Whoever Revives a Dead Animal, Hadith 3524
The reason is that the owner no longer desires or seeks it, so its ruling will be like those rejected and abandoned things.
If a person's shoe or belongings are taken and he finds the same shoe or some other item in the same place, he should not consider it as a replacement of his own property and claim ownership. Rather, it is also considered lost property (luqta). He will announce it for one year, and after identification, he will become the owner according to his right, and whatever excess portion there is, he will give it in charity.
⑧ The ruling on lost property found by a child or mentally incapacitated person
If a child or a mentally incapacitated person finds a lost item, their guardian must announce it and introduce it for one year, and take possession of that item, because neither of them is capable of accepting a trust and protecting it. If the guardian does not take possession of that item from them and it gets lost, the guardian will be liable, because it was lost due to their negligence. If the owner does not come, that item will become the property of the child or mentally incapacitated person who found it, but upon the owner's arrival, it must be returned, as is obligatory for an adult and sane person.
⑨ The ruling on returning a lost item to the same place
If a person picks up a lost item and then places it back in the same spot, and it gets lost there, that person will be liable. Because a trust came into their hands which they should have protected like other trusts, but they abandoned it and it was lost, so they will be responsible.
Warning
The instructions Islam has given regarding a foundling make it clear that the protection and care of people's wealth and belongings are of great importance. Moreover, Islam encourages goodwill, kindness, and cooperation among one another.
We pray to Allah Almighty to keep us steadfast on Islam and grant us death upon it. Ameen.
The Ruling on a Foundling
There is a deep connection between the issues of "Laqit" and "Laqta," because "Laqta" refers to lost or abandoned property, while "Laqit" refers to a child who is found abandoned or lost.
The reality is that the commands of Islam encompass every aspect of human life, including the rights of orphaned children and the helpless. In fact, the golden principles and human rights of Islam are many levels higher and superior to the well-known rights of today's civilized world. Similarly, Islam has also provided important guidance to people regarding a foundling.
Legally, a foundling (Laqit) is a child who is found abandoned or lost, whose lineage is unknown, and no one claims that this is my child, then he is a "Laqit."
The ruling on Laqit is that if any one person among the Muslims takes him up and raises and supports him, then the responsibility of all will be fulfilled, meaning no one will be sinful. In other words, it is a communal obligation (Fard Kifayah). Allah Almighty says:
﴿ وَتَعاوَنوا عَلَى البِرِّ وَالتَّقوىٰ...﴿٢﴾... سورة المائدة
"Help one another in righteousness and piety."
Reference: Al-Ma'idah 5/2
The wording of the verse, in its general sense, includes taking up and raising a foundling child, because this is also a form of cooperation in goodness and piety. Also, saving someone's life by taking him up is obligatory just as feeding someone in need or saving someone from drowning is obligatory.
① Freedom of the Laqit
A foundling child will be considered free in all Shariah rulings, because freedom is the original state and slavery is a temporary condition imposed from outside. When a person's slavery cannot be established, the original state, i.e., freedom, will be accepted.
② Ruling on the expenses of a foundling
If any property is found with or near the child, the one who picks up the child will consider it the child's property and spend it on the child in a known and appropriate manner, because he is the guardian and custodian of the child. If no property is found, the expenses will be paid from the Bayt al-Mal (public treasury). Sayyiduna Umar ibn al-Khattab (may Allah be pleased with him) said to a person who had picked up a foundling child:
"اذْهَبْ فَهُوَ حُرٌّ وَلَكَ، وَلَاؤُهُ وَعَلَيْنَا نَفَقَتُهُ"
"Take him away, this child is free, not a slave. His guardianship is your responsibility and his expenses are our responsibility."
Reference: Al-Muwatta of Imam Malik, Al-Qada' chapter, Hadith 1482
It should be noted that Sayyiduna Umar (may Allah be pleased with him) meant the "Bayt al-Mal."
In one narration, these words are mentioned: "وعلينا رضاعه" meaning "The responsibility of feeding him milk is upon us (Bayt al-Mal)."
In the light of this narration, the expenses of the child are not the responsibility of the person who takes him in, but rather of the Bayt al-Mal (public treasury). And if there is no arrangement for Bayt al-Mal, then the Muslims who are aware of his circumstances will bear his expenses, because Allah Almighty says:
﴿ وَتَعاوَنوا عَلَى البِرِّ وَالتَّقوىٰ...﴿٢﴾... سورة المائدة
"Help one another in righteousness and piety."
Reference: Al-Ma'idah 5/2
Besides, abandoning the expenses leads to the child's death. Furthermore, bearing his expenses is an act of sympathy and goodwill towards him, like hospitality towards a guest.
③ The ruling on the religion of a foundling
If the child is found in a Muslim country, or in a non-Muslim country where the majority are Muslims, then religiously that child will be considered a Muslim. Because the Messenger of Allah, peace be upon him, said:
" كل مولود يولد على الفطرة "
"Every child is born upon the fitrah (natural disposition of Islam)."
Reference: Sahih al-Bukhari, Funerals, Chapter: What was said about the children of polytheists? Hadith 1385. From this narration it is clear that no matter where the child is found, he will be considered a Muslim in every case. (Saarim)
If a child is found in a purely non-Muslim country or in an area where the number of Muslims is small, then according to the region, that child will be considered non-Muslim. However, the responsibility of raising the child will lie with the person who takes the child in, provided that person is trustworthy. Because Sayyiduna Umar ibn al-Khattab (may Allah be pleased with him) assigned the responsibility of raising an abandoned child to a person named Abu Jameela. When it was found that he was a righteous and trustworthy person, he said: "You are his guardian, and since you have taken him in, you have more right to raise him than others."
Reference: Al-Sunan al-Kubra by Al-Bayhaqi 6/202 Al-Laqita Bab al-Tiqaat al-Manboud... Warwa' al-Ghalil 6/1573
④ Ruling on the property found with the child
If property is also found with the child, then the person who takes the child in will spend that property on the child in a known and proper manner.
⑤ Eligibility of the person raising the child
If the person who takes the child is not fit to raise him, for example, if he is a sinner, or a disbeliever or polytheist while the foundling child is a Muslim, then the child will not be handed over to such a person. Because Islam does not permit appointing a disbeliever or sinner as a guardian and custodian, as this poses a threat to the child's religion.
⑥ The ruling on handing over a foundling to a nomad
If the person who takes the child is a nomad while the child is found in the city, then the responsibility of raising the child should not be entrusted to that nomad, because he keeps moving to different places and this causes difficulties for the child. Therefore, the child should be taken from such a person and handed over to a city dweller, because city life is more suitable for the child's religious and worldly well-being compared to nomadism. Also, it makes it easier to search for the child's family, heirs, and lineage.
⑦ Inheritance, blood money (diyat), and retribution (qisas) of the foundling
If a foundling dies, the Bayt al-Mal will be its heir. And if a crime is committed against it that requires blood money, its blood money will be collected in the Bayt al-Mal, provided it has no heir. And if its wife is alive, she will receive one-fourth of the inheritance.
If someone deliberately kills a foundling, since its blood money is to be collected in the Bayt al-Mal, all Muslims will be its heirs, but the ruler will be its guardian and heir on behalf of the Muslims. Therefore, he will have the option to take Qisas (retribution) or accept blood money for the Bayt al-Mal. Because the hadith states:
"فَالسُّلْطَانُ وَلِيُّ من لاولي له"
"He who has no guardian, the Imam (ruler) is his guardian."
Reference: Sunan Abi Dawood, Nikah, Chapter on Guardianship, Hadith 2083
And if it is wounded, one must wait until it reaches maturity and the age of understanding, so that it may choose to take Qisas or forgive.
⑧ Claim of Lineage and Decision of the Physiognomist
If any man or woman claims that a foundling is their son, and it is possible, then their claim will be accepted, because establishing lineage benefits the child and does not harm anyone else.
And if many people claim, then the one who has evidence will be given precedence. If no one has clear evidence and there is a conflict among the claimants' arguments, then the decision will be made by a physiognomist who is just, intelligent, and experienced. Then the physiognomist will decide in favor of the one whose lineage matches. This is because once, Sayyiduna Umar ibn al-Khattab, may Allah be pleased with him, made a decision based on the judgment of a physiognomist in the presence of other Companions, may Allah be pleased with them all.
Reference: When the physiognomist said that Zaid ibn Harithah and Usamah, may Allah be pleased with them, were father and son, the Prophet Muhammad, peace be upon him, was very pleased to hear this. See Sahih Bukhari Hadith 3555. (Saarim)
And Allah knows best.The Ruling on Waqf
Preserving the original ownership of something from sale, inheritance, and gift, and dedicating its income or benefit to a specific cause in the way of Allah, is called Waqf.
It should be clear that the original thing refers to an item from which benefit can be derived and which remains even after benefiting from it, such as a house, shop, or garden. And profit refers to the income or benefit from that thing, such as fruit, rent, or housing.
In Islam, endowment (waqf) is recommended and is a means of drawing closer to Allah Almighty. Its proof is established from the Sunnah of the Prophet ﷺ. It is narrated that Sayyiduna Umar ibn al-Khattab رضي الله عنه acquired land in Khaybar, so he came to the Messenger of Allah ﷺ for advice and said: O Messenger of Allah! I have acquired land in Khaybar, and I have no better or more valuable wealth than this. What do you advise me regarding it? The Prophet ﷺ said:
"إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا وَتَصَدَّقْتَ بِهَا "
"If you wish, you can endow your original property and give its (profit) as charity."
Reference: Sahih al-Bukhari, Conditions, Chapter on Conditions in Waqf, Hadith 2737 and Sahih Muslim, The Will, Chapter on Waqf, Hadith 1632
Thus, Sayyiduna Umar رضي الله تعالى عنه gave it as charity in such a way that its principal should neither be sold, nor gifted, nor inherited.
It is narrated in Sahih Muslim that the Messenger of Allah صلى الله عليه وسلم said:
"إِذَا مَاتَ الْإِنْسَانُ انْقَطَعَ عَنْهُ عَمَلُهُ إِلا مِنْ ثَلاثَةٍ : إِلا مِنْ صَدَقَةٍ جَارِيَةٍ ، أَوْ عِلْمٍ يُنْتَفَعُ بِهِ ، أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَهُ "
"When a person dies, his deeds come to an end except for three things that continue: ongoing charity, knowledge from which benefit is gained, or righteous offspring who pray for him."
Reference: Sahih Muslim, Al-Wasiyyah, Chapter: Does a person continue to receive reward after death? Hadith 1631
Sayyiduna Jabir رضي الله تعالى عنه says: "Among the Companions رضي الله عنهم all, whoever was capable, would certainly endow something."
Reference: Minar al-Sabeel, p. 397
Imam Qurtubi رحمه الله says: "There is absolutely no disagreement among scholars regarding declaring mosques and bridges as endowments; however, there is disagreement concerning other things."
Reference: Tafsir al-Qurtubi 19/22, Al-Jinn 72/18
① Eligibility of the Endower
One of the conditions of Waqf is that the person making the Waqf must be competent and authorized, meaning sane, adult, and free. Therefore, the Waqf of an ignorant person, a child, or a slave is not valid.
② How is Waqf established?
Waqf can be established in one of two ways:
① Through words, for example, someone says: "I have dedicated this house as Waqf" or "I have made this place a mosque."
② By adopting an action or manner that customarily indicates Waqf, for example, someone declares their house a mosque and generally allows people to pray there, or someone converts their land into a cemetery and generally allows people to bury there.
③ Types of words indicating Waqf
The words that indicate Waqf are of two types:
① Explicit words, meaning the use of the word "Waqf" or a word whose meaning is exclusively Waqf. Therefore, when a person uses such words about an item, it will be considered Waqf without any interpretation.
② Figurative words, for example, using words like "Sadaqah" or "Hurmat" about an item. These are called figurative because they can imply either Waqf or non-Waqf. Therefore, in this case, the person's intention will be decisive. Or there should be an explicit word along with the figurative words or another figurative word that makes the meaning of Waqf clear.
An example of explicit words with figurative words is when someone says: "I have given such and such thing as Sadaqah while making it Waqf" or "I have given it as Sadaqah forever and ever."
And an example of a figurative word with another figurative word that implies Waqf is when someone says: "I have given this thing as Sadaqah; it will neither be sold nor transferred in inheritance."
④ Conditions for the Validity of Waqf
The conditions for the validity of Waqf (endowment) are as follows:
① The waqif, i.e., the one who makes the endowment, must have the authority to dispose of the item, as mentioned above.
② The waqf item must be such that it remains even after benefiting from it, for example, a house or land. And an item that is consumed upon use, such as food or drink, cannot be endowed. Giving such items as charity is called Sadaqah.
③ The purpose of the waqf must be lawful, because the intention behind waqf is to attain the nearness of Allah Almighty, for example, endowing for mosques, bridges, the poor, water fountains, scholarly books, or for a relative. Waqf for an unlawful purpose is not valid, for example, giving a place for the worship of disbelievers, endowing for literature opposing Islam, providing light or fragrance at shrines, or endowing for shrine attendants, because this strengthens sin, polytheism, and disbelief.
④ If the subject of the endowment is a specific individual, then that individual must be one who is capable of becoming an owner, because Waqf is a transfer of ownership, and it is not valid on someone who cannot become an owner, such as a deceased person or an animal, etc.
⑤ For the validity of the Waqf, it is also a condition that it be for an unlimited period. Therefore, a Waqf that has a fixed time or is limited by a condition is not valid. However, if a person makes the condition of his death, then the Waqf will be valid, for example, if he says: "When I die, my house will be endowed for the poor."
Sayyiduna Umar ibn al-Khattab, may Allah be pleased with him, had made a will regarding his land called "Thamgh" that it would be charity after his death.
Reference: Narrated by Abu Dawood in Sunan with its meaning, Hadith 2879, and also in Sahih al-Bukhari, Hadith 2764. These hadiths clarify that this property was endowed by Umar, may Allah be pleased with him, during his lifetime in the presence of the Messenger of Allah, peace be upon him, but he made a will regarding the trusteeship in favor of Hafsa, may Allah be pleased with her (A.W.)
No one objected to this, therefore its validity is established by the consensus of the Companions, may Allah be pleased with them all.
It should also be clear that a conditional endowment based on death should not exceed one-third of the property, because this is the ruling for wills.
⑤ Validity of the Condition of the Endower
Among the rules of endowment is that the condition of the endower should be fulfilled, provided that it does not make something forbidden lawful or something lawful forbidden, because the Messenger of Allah, peace be upon him, said:
"وَالمُسْلِمُونَ عَلَى شُرُوطِهِمْ، إِلَّا شَرْطًا حَرَّمَ حَلَالًا، أَوْ أَحَلَّ حَرَامًا"
"Muslims must abide by the agreed conditions, except a condition that makes lawful what is forbidden or forbidden what is lawful."
Reference: Jami' at-Tirmidhi, Al-Ahkam, chapter on what the Messenger of Allah, peace be upon him, said about reconciliation among people, Hadith 1352. See Sahih al-Bukhari, Wasaaya, chapter on what the guardian can do with the property of the orphan..., Hadith 2764 and Sunan Abi Dawood, Wasaaya, chapter on what was narrated about a man with an endowment, Hadith 2879
In addition, Sayyiduna Umar ibn al-Khattab, may Allah be pleased with him, also imposed conditions in endowments.
If it is not necessary to consider a valid condition, then there is no benefit in imposing a condition. Therefore, if the waqif (donor) imposes a condition on a specific quantity, or conditions giving more to one deserving person than another, or imposes a condition based on a specific attribute, for example, stating that this thing is dedicated to the student among the students who reads Sahih al-Bukhari, or to the person who does not shave his beard, or to the person who supervises this item, then such conditions must be observed.
In short, if any condition is not against the Book and Sunnah, then it must be respected and adhered to. And if no condition was specified at the time of dedication, then in its entitlement and use, the rich and poor, men and women, will all be equal.
⑥ The ruling on the supervisor of the waqf
If no supervisor has been appointed for the endowed property, or if one was appointed but has passed away, then if the beneficiary is a specific individual, he himself will supervise it. And if the beneficiary is a type or group, for example, mosques, or such people who cannot be counted, like the poor, then the ruler will be the supervisor. He will either supervise it himself or appoint a deputy.
⑦ Status of the Endowed Property
The endowed property is a trust with the supervisor, therefore it should be supervised with fear of Allah Almighty.
⑧ Endowment for Children
Endowing for children is correct. For example, if someone says: "I endow for my children," then sons and daughters will all be included equally, because when the partnership is kept absolute, the entitlement is equal for all, just as if he acknowledges something for them, all will share equally, and if something is endowed, it will also be for all of them.
Then, after the children of the son, it will move to the children of the dedicated sons, while the children of daughters will not be included, because they are considered the children of another person. Allah Almighty says:
﴿يوصيكُمُ اللَّهُ فى أَولـٰدِكُم...﴿١١﴾... سورةالنساء
"Allah commands you concerning your children."
Reference: An-Nisa:4/11
In this verse, the children of daughters are not included. However, some scholars hold the opinion that the children of daughters are also included in "the children," because when daughters are children, their children will also be included in the children of children. And Allah knows best.
And if someone says: "I dedicate for my sons" or "I dedicate for so-and-so's sons," only the boys will be meant, not the girls. Because the word بَنِينَ is specifically masculine, as Allah Almighty says:
﴿أَم لَهُ البَنـٰتُ وَلَكُمُ البَنونَ ﴿٣٩﴾... سورة الطور
"Is it for Him (Allah) daughters while for you are sons?"
Reference: At-Tur:52:39
However, if the dedicated party is a tribe, for example, it is said: "This thing is dedicated for Banu Hashim or Banu Tamim," then both men and women will be included, because the name of the tribe applies to both.
If the endowment is for a group whose number can be determined, then entitlement and use will be equal. But if their number cannot be determined, for example Banu Hashim or Banu Tamim, then it is not necessary to generalize to all; rather, it is permissible to suffice with some individuals or to prefer some over others.
⑨ The ruling on the obligation of Waqf
Waqf is established merely by saying it. After that, it cannot be revoked, because the Messenger of Allah, peace be upon him, said:
"وَلَا يُبْتَاعُ وَلَا يُورَثُ وَلَا يُوهَبُ "
"Endowed property cannot be sold, inherited, or gifted."
Reference: Sahih al-Bukhari, Al-Wasaya, Chapter on Waqf, Hadith 2772
Imam Tirmidhi, may Allah have mercy on him, said: "The majority of the scholars act according to this hadith."
Reference: Jami' al-Tirmidhi, Al-Ahkam, Chapter on what has been narrated about Waqf, Hadith 1375
⑩ When is the sale of Waqf permissible?
It is not permissible to revoke a waqf, because it is meant to be permanent. Similarly, it cannot be sold or transferred to someone else. However, if it becomes impossible to benefit from the waqf, for example, if a waqf-dedicated house collapses and it is not possible to rebuild it from the waqf income, or if agricultural land becomes barren and it is not possible to cultivate it from the waqf income, then in such a case the waqf will be sold and its price will be invested in something else of the same kind, because this is closer to the purpose of the waqf. And if an identical item is not possible, then something closer will be purchased, and as soon as the substitute item is bought, it will also be considered waqf.
⑪ Ruined Mosque and Surplus Income of Waqf
If a mosque was waqf but the mosque is no longer useful or beneficial in that place, meaning the population of that area has disappeared, then it should be sold and another mosque should be built with its price elsewhere, or that amount should be spent on another mosque.
And if something is endowed for a mosque, then when the income from that endowed thing exceeds the needs of the mosque, the excess income can be spent on another mosque, because this is the requirement of the endower's purpose.
If the thing endowed for the mosque is grain or crops, then the portion exceeding the mosque's needs can also be spent on the poor and needy.
⑫ Excess produce endowed for a specific person
When the endowment is for a specific individual, for example, someone says: "This land is endowed for Zaid, and he should be given one hundred mann of wheat every year," then if the produce of this land exceeds the specified amount, it is necessary to preserve the excess.
Sheikh Taqi al-Din, may Allah have mercy on him, says: "If it is known that its produce always exceeds the specified amount, then the excess produce should be spent fi sabilillah, because there is a risk of loss if it is stored."
⑬ Use of endowed property for an abandoned mosque
If something has been dedicated (waqf) for a mosque that later became deserted, and there remains no benefit in spending that dedicated property there, then that property should be spent on another mosque of the same kind.
ھذا ما عندی والله اعلم بالصواب
