Fay’ is actually Waqf — not personal ownership

A second dimension of conformity between Qur’an and Hadith
October 20, 2020
Determining the Nature of the Inheritance of the Prophets
October 20, 2020

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Fay’ is actually Waqf — not personal ownership

 

Before proceeding, the Shia out of hindsight level such objections which are detrimental to their own faith without tarnishing the image of the Ahlus Sunnah in any way. Nevertheless, what Allah restored appears as Jumlah Ismiyyah (a nominal sentence). In eloquent expression, Jumlah Ismiyyah denotes constancy and perpetuity (i.e. dawam and thubut). This demands the perpetual attachment of the recipients which are Allah, His Rasul, Dhu al Qurba, etc., to it. The perpetual relationship between the two can only be envisaged if Fay’ is classified as Waqf. In other words, Waqf remains forever in the ownership of Allah and the beneficiaries benefit from it perpetually.

 

Difference between Sadaqat and Fay’

Whilst the same Jumlah Ismiyyah occurs in the verse:

إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِيْنِ

Zakat expenditures are only for the poor and for the needy.

there is a difference between Sadaqah and Fay’ for those who understand. Giving Sadaqah is an instant action and there is no perpetuity to the action. It terminates just as rapidly as it commenced. Therefore, prior to releasing it, it is not classified as charity. Had it been charity before it was dispensed all the promises of Allah for giving charity ought to apply, such as being entitled to rewards, discharging one’s obligation, cooling the wrath of anger of Allah, etc. Similarly, after being received by the needy, it again loses its classification as Sadaqah. Therefore, if the needy person then entertains a wealthy person or a Sayed with it, it is considered valid and permissible. Therefore, the wealth of Sadaqah is only classified as such in the moment when the exchange takes place, not prior to it and not after that.

Nevertheless, what Allah restored denotes perpetuity but (in philosophical terms) perpetuity arises only when the subject remains forever attached to the predicate. However, it is not anyone’s task to identify the actual subject in each situation. This requires in-depth understanding and insight, which is divinely conferred to whomsoever Allah wills.

Therefore, in what Allah restored the actual subject is the word Ma (what), which is a reference to Fay’ lands. As for the word Afa’(restored), it is for clarification and dispelling ambiguity. Therefore, for Allah onwards [and the rest of the recipients] will remain forever attached to it. In philosophical terms, this is known as Qadhiyyah Da’imah (perpetual relationship). Having understood this, it is evident that the Prophet’s salla Llahu ‘alayhi wa sallam action was in conformance with this verse.

 

Infallibility of Fatimah

As for Sayyidah Fatimah radiya Llahu ‘anha being infallible and such a gesture impacting on her infallibility, it should be known that the Ahlus Sunnah do not entertain this belief about a non-Nabi. Similarly, in the discussion on the verse of Surah al Fath, we have explained how an infallible can have a misunderstanding and fallible human can have the correct perception. There are numerous other instances of this which appear in the Qur’an and Sunnah. The example of Nabi Dawood ‘alayh al Salam passing judgement which was not as accurate as that of Nabi Sulaiman ‘alayh al Salam, who was not yet a Nabi, or an Imam as Shia terminology requires. But if the Shia do not know the contents of the Qur’an then it is not our fault.

Consequently, the objection levelled by the Shia towards the Ahlus Sunnah for following such leaders who are fallible and can err is just like the case of a blind person saying that the sun has no light and him saying that there is no vision in his eyes. So, this allegation of the Shia does not show any shortcoming in the Ahlus Sunnah; it actually depicts the weak mental aptitude of the Shia.

 

Third evidence that the Prophet salla Llahu ‘alayhi wa sallam did not have ownership of Fay’

A third evidence that the Prophet salla Llahu ‘alayhi wa sallam did not own Fadak and that the stipulation of beneficiaries was not like the injunction of zakat from one’s wealth. This proof is so adequate that it dispels any objection about why Fadak itself was not distributed. It is as follows: The revenue of land is either through its fruits or crop harvest. Consequently, the trees and crops are indirectly part of the land. This is just like how prior to plucking the fruit from a tree, the tree and the fruit on it are referred to collectively as a tree and prior to harvesting the crop the land is referred to as land even though it has crops on it. In a similar way, what Allah restored also refers to the revenue of the land.

But just as how a crop has seeds and husk for example, it is then shared between human beings and cattle. in the same way, there is a partnership between Allah and the recipients in the Fay’ lands, each receiving what is suitable for him because Allah has stipulated his share in the verse along with the other recipients. Therefore, since Allah is independent of food and drink, and human beings are dependent the distribution will be accordingly. The words fuqara’ (poor) and masakin (orphans) inherently convey this meaning of dependency. The word Rasul [also listed as a recipient] conveys the meaning of need and dependency too. Consider that the office of Nubuwwah is such an onerous responsibility that it hardly leaves any time for mundane tasks. Therefore, the Prophet salla Llahu ‘alayhi wa sallam remained devoted to his task of conveying the message till he was called back by Allah. Consequently, the Prophet’s salla Llahu ‘alayhi wa sallam lack of material resources is evident from the word “Rasul” itself and since he was devoted to the cause of Allah he has been listed as the first recipient.

Nevertheless, it is evident that listing all these beneficiaries in the Fay’ is on account of their need. Therefore, the distribution would be as follows: The fruits and crops—which are essentially part of the land—along with the land itself would be what is referred to as what Allah restored. The ownership of the actual land will remain for Allah but its revenue would be distributed to the recipients due to their need.

This explanation dispels the possibility of the Prophet salla Llahu ‘alayhi wa sallam having ownership of the Fay’ lands and the recipients being added to it like the purpose of zakat in one’s wealth. It also dispels the objection of not distributing the actual land among the recipients.

 

Fourth evidence that the Prophet salla Llahu ‘alayhi wa sallam did not have ownership of Fay’

Ready yourself for the fourth proof now so that any doubts that remains in the heart can be completely wiped out. The verse, what Allah restored, has its recipients outlined, in which there is also mention of the Prophet salla Llahu ‘alayhi wa sallam. However, this does not necessitate ownership of the Prophet salla Llahu ‘alayhi wa sallam because if we assume that there was ownership then the outcome (Jaza) which is found after the condition (Shart) as established by the letter fa would be general in all the recipients resulting in complete ownership to all the recipients in all the categories. Since, this is not so, as agreed upon by both the Sunni and the Shia, there is no reason to restrict it to only one or two of the categories of the recipients mentioned. Thus, there is no possibility of understanding the verse in a way that singles out only one or two categories for ownership. Yes, the infallibility of the Prophet salla Llahu ‘alayhi wa sallam meant he would be the one to divide it; however, this does not mean he had ownership of it. On the other hand, if every category mentioned—besides Allah which is evident—are considered mere recipients (Masarif) then it would make perfect sense.

If indeed the issue was one of ownership, then the verse would have been revealed in the following manner, For the Rasul, for Allah, and for the near relatives, thus establishing ownership to the Prophet salla Llahu ‘alayhi wa sallam prior to mentioning the recipients. Sure, the eloquence of the Qur’an would have then been compromised but then ownership of the fay’ by the Prophet salla Llahu ‘alayhi wa sallam would have been guaranteed.

 

Fifth evidence that the Prophet salla Llahu ‘alayhi wa sallam did not have ownership of Fay’

The fifth evidence is that the personal pronoun in:

كَيْ لَا يَكُوْنَ دُوْلَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ

So that it will not be a perpetual distribution among the rich from among you.[1]

refers to what Allah has restored. Therefore, the stipulation of beneficiaries is to avoid a situation where the lands of Fay’ become privately owned wealth. This can only be possible if we consider the stated recipients as permanent beneficiaries to the Fay’. If it is considered the Prophet’s salla Llahu ‘alayhi wa sallam personal possession, then that which was being averted would inevitably come to pass. This is because if the direct descendants who inherited it initially were not affluent then the system of Allah is such that affluence or poverty is not retained perpetually in any family. Therefore, if this land were inherited then in the subsequent generation’s ownership of it could come into the hands of wealthy and affluent ones.

However, confining the rich to rulers or affluent ones among an army has no substantiation. Yes, if this verse listing the beneficiaries was revealed to break the hopes of wealthy army officials or rulers of the era of ignorance—who consumed all the booty themselves—then too the command in the verse is all-encompassing, though the situation for which the verse was revealed maybe somewhat specific. Consequently, there are hundreds of examples where a situation or incident demanded the revelation of a verse or a prophetic injunction, but the ruling was general and applicable for all. Therefore, the rich have to have broad connotations.

 

Sixth evidence that the Prophet salla Llahu ‘alayhi wa sallam did not have ownership of Fay’

The beneficiaries listed in this verse, have been listed by their predominant characteristic. The Prophet salla Llahu ‘alayhi wa sallam has been referred to by his position as a Rasul, the needy, destitute and the wayfarer have been referred to with those specific characteristics as well (i.e. need, destitution, and travelling). There is no mention of identities of individuals.

This verse is then followed by the verse:

لِلْفُقَرَآءِ الْمُهٰجِرِیْنَ الَّذِیْنَ اُخْرِجُوْا مِنْ دِیَارِهِمْ وَ اَمْوَالِهِمْ یَبْتَغُوْنَ فَضْلًا مِّنَ اللهِ وَ رِضْوَانًا وَّ یَنْصُرُوْنَ اللهَ وَ رَسُوْلَه ؕ اُولٰٓئِكَ هُمُ الصّٰدِقُوْنَ

For the poor Muhajirin who were expelled from their homes and their properties, seeking bounty from Allah and (His) approval and supporting Allah and His Rasul, (there is also a share). These are those who are truthful.[2]   

 

And:

وَ الَّذِیْنَ تَبَوَّؤُا الدَّارَ وَ الْاِیْمَانَ مِنْ قَبْلِهِمْ یُحِبُّوْنَ مَنْ هَاجَرَ اِلَیْهِمْ وَ لَا یَجِدُوْنَ فِیْ صُدُوْرِهِمْ حَاجَةً مِّمَّا اُوْتُوْا وَ یُؤْثِرُوْنَ عَلٰی  اَنْفُسِهِمْ وَلَوْ کَانَ بِهِمْ خَصَاصَةٌ ؕ وَ مَنْ یُّوْقَ شُحَّ نَفْسِه فَاُولٰٓئِكَ هُمُ الْمُفْلِحُوْنَ

And (also for) those who were settled in Madinah (the Ansar) and (adopted) the faith before them. They love those who emigrated to them and find not any want in their breasts for what they (the Muhajirin) were given but give (them) preference over themselves, even though they are in privation. And whoever is protected from the stinginess of his soul — it is those who will be successful.[3]

 

And then:

وَ الَّذِیْنَ جَآءُوْ مِنْ  بَعْدِهِمْ یَقُوْلُوْنَ رَبَّنَا اغْفِرْلَنَا وَ لِاِخْوَانِنَا الَّذِیْنَ سَبَقُوْنَا بِالْاِیْمَانِ وَ لَا تَجْعَلْ فِیْ قُلُوْبِنَا غِلًّا لِّلَّذِیْنَ اٰمَنُوْا رَبَّنَا اِنَّكَ رَءُوْفٌ رَّحِیْمٌ

And (these is a share for) those who came after them, saying: “Our Rabb, forgive us and our brothers who preceded us in faith and put not in our hearts (any) resentment toward those who have believed. Our Rabb, indeed You are Kind and Merciful.[4]

 

These three subsequent verses are badal (alternatives) from near relatives and orphans and the [stranded] traveller.

It is evident that these characteristics have a relationship with the Fay’ and that Fay’ must be dispensed in these avenues. Since land and its revenue can continue forever, and it is not something that perishes upon usage such as food, which perishes upon consumption, therefore, the beneficiaries will continue benefitting from it till the end. If not, the implication of continuity and perpetuity, which is the effect of Jumlah Ismiyyah would be forfeited. This is only possible if Fay’ is classified as Waqf and the actual land is not distributed among the recipients.

Since the predominant characteristic of the recipients has been mentioned, the Muhaqqiqin maintain that the khums which is received today, the share of the Prophet salla Llahu ‘alayhi wa sallam would no longer be considered, as the characteristic of risalah is not to be found any longer.

 

Seventh evidence that the Prophet salla Llahu ‘alayhi wa sallam did not have ownership of Fay’

It is obvious to one and all that Allah is the Supreme Owner of everything and everyone. The ownership of human beings is temporary and superficial. This is similar to a landlord owning a few homes which he has given on rent. Each tenant refers to the rented home as his home. Similarly, Allah has allowed us usage and benefit of the things given to us for some time and just like those tenants, we refer to those things as our personal belongings. Similarly, the landlord has to enter a contract with the lessee and receive rentals from him, otherwise the properties would remain in his possession. In the same way, our ownership of what has been created for our use is also dependent on a contract in order to secure it, which could either be purchasing, receiving it as a gift or it being handed down to one as a bequest. If not, Allah retains ownership over it.

As for the Fay’ lands, the only manner to secure ownership over it was through receiving it as booty, but this option has been ruled out because Allah had given it without any battle. Therefore, the Rasul, Dhu al Qurba, etc., have been stipulated as beneficiaries to determine a means for them to secure their rights over it.

Nevertheless, these seven evidences highlight why these beneficiaries would be the perpetual recipients of the revenue from Fay’ (and not its owners).

Therefore, Sayyidah Fatimah’s radiya Llahu ‘anha claim for it establishes that she is not infallible. And even if she were infallible, infallible souls can have a misunderstanding sometimes as has been established. In this case, the reason for her misunderstanding is evident. She saw the Prophet salla Llahu ‘alayhi wa sallam administrating its affairs throughout his life and being the most devout woman, how would she know whether it was classified as Fay’ or booty. Women of her calibre who have no worldly aspirations are bound to be in the dark about these material matters. More so, when the issue revolves around Fay’ which is from the settlements of Khaybar.

It is evident that the nature of these settlements was diverse; some were conquered and others were secured peacefully, like Fadak. Consequently, there is a difference of opinion among the scholars about Khaybar; was it conquered or did they submit willingly.

Nevertheless, it is evident that the Prophet salla Llahu ‘alayhi wa sallam had no personal ownership over Fadak and that the remaining recipients are not determined in the manner in which zakat is determined as a percentage upon one’s wealth. This could have been entertained if not for the attachment of Dhu al Qurba upon Rasul. Therefore, since the remaining beneficiaries had no ownership, ownership cannot be concluded for the Prophet salla Llahu ‘alayhi wa sallam too.

 

Two difficulties in considering Dhu al Qurba and other recipients the owners of Fay’

Assuming that Dhu al Qurba and other beneficiaries are owners of Fay’ then it implies that the Prophet salla Llahu ‘alayhi wa sallam and these beneficiaries had joint ownership over Fay’. This creates two problems; firstly, this gives unlimited people joint ownership as there is no limitation of the Dhu al Qurba and other beneficiaries. Their numbers could fluctuate on a daily basis. More so if we consider, “And (these is a share for) those who came after them, saying: “Our Rabb, forgive us and our brothers who preceded us in faith,” which includes all believers till the end of time. Secondly, booty and debts also for that matter cannot come into one’s ownership unless it comes into one’s possession. As for Fay’ it has not come by through the efforts of the beneficiaries; it is God-given. Without assuming possession and authority over it, it remains unattached.

We can conclude that there is ample evidence suggesting that Fay’ was not owned by the Prophet salla Llahu ‘alayhi wa sallam. Just as how ownership is not established, the possibility of ownership is also not established. Conversely, the impossibility of ownership is manifest. This required such a lengthy deliberation from me, because though non-ownership is evident; I had to establish that the possibility of ownership is also not fathomable. Since I am debating with obtuse people, I was compelled to elaborate at length.

 

An objection about Waqf which stems from the verse, “And those your right hand possesses”

It should be noted that what Allah restored is general, which includes movable and immovable property. Therefore, if what Allah restored attains the classification of Waqf, then it includes movables, and this creates two problems. Firstly, the Hanafi school of thought maintain that movables cannot be classified as Waqf. Secondly, movables from the Fay’ were never classified as Waqf and it was always considered personal property according to the unanimous view of scholars. Consequently, these movables were bought, sold and owned, indicating that these movables of Fay’ were not Waqf. This is evident from the fact that the Prophet salla Llahu ‘alayhi wa sallam distributed the arms and weapons from the Fay’ of Banu Nadir among the Sahabah, with no hint of it being Waqf property in any way.

In fact, there is clear testimony of this in the Qur’an which is supreme evidence. Consider the following verse:

 

وَمَا مَلَکَتْ یَمِیْنُكَ مِمَّا اَفَآءَ اللهُ عَلَیْكَ

And those your right hand possesses from what Allah has returned to you (of captives).[5]

 

This means: O Nabi, we have made lawful for you those bondswomen whom you have received through the Fay’ which Allah has handed over to you.

Consequently, it is evident from this verse that the slaves (movables) from Fay’ are not classified as Waqf, they can be owned. Therefore, if one item of the Waqf can be owned it creates an objection about the interpretation that we have given to what Allah restored and the beneficiaries listed there.

It must, therefore, be determined what the true nature of the Fay’ is; if it is Waqf, then all of it must be classified as Waqf and if it is not Waqf then movables and non-movables must be given the same classification.

 

Response to this objection

Firstly, we do accept that Imam Abu Hanifah does not consider the Waqf of movables to be valid. However, Allah subhanahu wa ta ‘ala is not subjected to taqlid of the view of Imam Abu Hanifah. The worst-case scenario is that Imam Abu Hanifah has erred, and the Ahlus Sunnah have never claimed that their Imam is infallible. Instead, they maintain that a Mujtahid errs and he deduces correctly, but his correct rulings overwhelm his errors. Therefore, it is possible that he has erred and why not? Sahibayn—his two students[6]—maintain that Waqf of movables is valid. Sahibayn are also Imams of the Ahlus Sunnah, and if the Shia would have followed them instead of people like al Tusi, al Radi, Sharif al Murtada and Abu al Qasim then it would have been their good fortune.

However, what if the Qur’anic verse supports Imam Abu Hanifah’s view after all? Let us elaborate on this but please do not be biased and listen carefully if you really wish to know how it justifies Imam Abu Hanifah’s view. Consequently, the verses preceding this which commence from:

 

هُوَ الَّذِیْ  اَخْرَجَ الَّذِیْنَ کَفَرُوْا مِنْ اَهْلِ الْکِتٰبِ مِنْ دِیَارِهِمْ لِاَوَّلِ الْحَشْرِ

It is He who expelled the ones who disbelieved among the People of the Scripture from their homes at the first gathering.

Till:

مَا قَطَعْتُمْ مِّنْ لِّیْنَةٍ اَوْ تَرَكْتُمُوْهَا قَآئِمَةً عَلٰی اُصُوْلِهَا فَبِاِذْنِ اللهِ وَ لِیُخْزِیَ الْفٰسِقِیْنَ

Whatever you have cut down of (their) palm trees or left standing on their trunks, it was by permission of Allah and so He would disgrace the defiantly disobedient.[7]

establishes that what Allah restored refers to homes and vacant lands. Therefore, only immovables are implied by what Allah restored, not movables. Now despite the word Ma (what) having a general all-encompassing connotation, it has been qualified by the passage preceding it and this occurs very commonly in Arabic usage (i.e. the confinement of Ma to specific things). Children studying the primary text of al Kafiyah understand that in the sentence:

الاسم ما دل على معنى

Ma refers to a word.

 

This is why Molana Jami explains that Ma refers to a word in Sharh Mulla.

This establishes that what Allah restored refers to immovables only, not both movables and immovable. Subsequently the phrase, “so that it will not be a perpetual distribution among the rich from among you,” also supports this because perpetual distribution is only possible in something that remains intact and this cannot be the case with movables as it is subject to wear and tear and perishing through consumption. Whilst some movables may have some lifespan, the possibility of perpetual distribution cannot be visualised as the verse, “And those who came after them, saying: ‘Our Rabb, forgive us and our brothers who preceded us in faith,’” extends the beneficiaries till the end of time. In this case, surely only immovables like land can survive that duration of time and only it can be subjected to perpetual distribution.

Therefore, what Allah restored does not include movables and there is no objection against Imam Abu Hanifah rahimahu Llah.

 

An unanswered question

If what Allah restored does not include the movables acquired through Fay’ then what would its classification be. Would it be classified as Waqf, like Fay’, or would it be possible to have ownership like that which is acquired as booty? In my humble opinion it would be possible and the recipient would have ownership. If anyone can prove otherwise, then I would be more than happy to accept their view.

Allow me to substantiate my view; Waqf is usually something where the actual item remains and it is then utilised (without the actual thing perishing). Therefore, the actual item remains and its benefits are dispensed or utilised by beneficiaries.

 

Movables Such as Food and Crops Cannot Be Classified as Waqf

Since the Waqf item and its benefits are two separate entities the word for Allah along with the other recipients listed in Fay’ is valid because the actual thing remains in the ownership of Allah, whilst the beneficiaries enjoy its revenue. As for benefits of Waqf, it is something that does not have long-lasting endurance.

Consider edible items—which are movable—and which are one of the benefits derived from Waqf land. Benefits in our discussion here refer to that which is not worthy of utilising again once it has been benefited from; instead it is consumable and perishable. Therefore, food perishes once consumed.

Besides food which is perishable, other movable items—received as Fay’—could include clothing, conveyances etc. Clothing and perishables from one perspective can be considered like immovables because in the case of conveyances, the animal is one entity and the benefits derived from it such as riding it and making a journey easy are a separate matter. Similarly, a garment is one entity and the benefit of wearing it to protect oneself from cold or heat is a separate matter.

But if this perspective is considered than almost every other item of human use could be defined in the same way. Therefore, bread is an entity and its ability to nourish and sustain is a separate issue. However, this perspective does not entitle it to being classified as Waqf. Had this been so, then just as how land is made Waqf, the harvest of it would also have been made Waqf, but this is not valid according to anyone. Waqf demands that the actual item be retained and that it be imperishable whilst its benefits are distributed to beneficiaries. In the case of food, the actual item perishes. Therefore, if grains and crops were classified as Waqf, then just as the Fay’ lands were Waqf, these would also have been Waqf and it would not have been possible for the recipients to sell it or give it as hibah, or that it be inherited from them or bequeathed (which are the rules of Waqf) but none prohibits them from this.

Therefore, crops are classified purely as benefits. The benefits of Waqf — when given to the recipients is classified as charity and they then become its owners. They are then permitted to sell it or do as they like. So, if someone wishes to consider crops and harvest as a Waqf item, then let them do so. In this instance the discussion revolves around the crops of the lands of Fay’ which is the Waqf of Allah Ta’ala and these crops unanimously cannot be Waqf otherwise the recipients would not receive it.

 

Conveyances and clothing cannot be considered Waqf items

As for clothing and conveyances, if anyone does make any distinction between this and crops then it would only be that crops perish upon consumption whilst clothing and conveyances do not perish [instantly] upon usage. But if we reflect closely, this is just like the case of a loaf of bread; if one slice is eaten the remaining is still available. Similarly, benefitting from clothing and conveyances brings gradual decay despite these not perishing instantly. That is why it is seen that those animals which are used for riding and carrying burdens are noticeably weaker and leaner than animals that are left free. Clothing also wears out gradually with each cycle of wash and wear.

Nevertheless, items of benefit perish instantly or gradually, whereas that which exists absolutely, such as land, it is not perishable. This is evidently the reason why Imam Abu Hanifah considered the Waqf of movables invalid. Sahibayn and those who maintain that view have considered these movables as Waqf, on account of the temporary existence of the item—which differs from item to item—but the above explanation accords merit to the view of Imam Abu Hanifah.

 

Deliberation of Sahibayn’s stance regarding Waqf of movables

If we disregard the above discussion, then the stance of Sahibayn seems to be correct since, firstly, the benefits derived from clothes, conveyances, and other necessary items of life are—according to our idiomatic usage—assigned to the items themselves. Further, as long as they remain in their forms of utility, they are not assigned to their substance. which gradually decays with use.

Secondly, just as every human is considered a separate entity in relation to rest of humanity, the different benefits derived from clothing and conveyances are considered separate entities in their own right. Thus, if some of the entities—humans or benefits—cease to exist it does not translate into the entire species becoming non-existent. Therefore, if at some point, some benefits are lost, it does not mean the principle benefit is lost. And since the existence of its various benefits relies on only the existence of the principle item, why would Waqf of the said items not be possible?

This is unlike the benefit gained through food items since such benefit eats into itself. For example, the benefit gained from half a slice of bread is half of what could be attained from one slice.

 

The stance of Sahibayn helps our cause too

If the stance of Imam Abu Hanifah is taken, then it is quite obvious that movable property cannot be classified as Waqf from fay’ nor can it be classified as Waqf. Though, if the stance of Sahibayn is taken then too our cause does not fail. To grasp this, consider the principle in the greatest necessity of human life; food. Every other movable wealth is secondary to it. All secondary items are in fact a means to attain this principle wealth of food. Now, Waqf is a mechanism instituted to alleviate need, and the only true need is that of food. Thus, there has to be a necessity of food for those on the receiving end of Waqf from fay’, albeit not from other types of Waqf.

It is therefore understood that the objective of the Waqf from fay’ is alleviating need through food. This is further cemented by the indications of the Qur’an wherein Allah subhanahu wa ta ‘ala used words such as Rasul, Masakin, Fuqara’, and Ibn Sabil. The second and third demographic has the innate distinguishing mark of poverty, i.e. lack of food. The other words describe personas of the same standing. In the word ‘Rasul’ this meaning is found in the sense that the Messenger is sent with a particular task in which he expands all his energies due to which he has no time to spend in attaining a livelihood. The livelihood of the Messenger is thus the responsibility of Allah subhanahu wa ta ‘ala. As far as orphans and travellers are concerned, due to them being detached from sources of income, here too the meaning of poverty is found. Consequently, in all the categories poverty is found to some degree.

 

Waqf of movable items is of no benefit to the poor

If they are given movable items than they can either benefit from it by using it to earn a living, for example, by using a conveyance as a means of transportation hire or by selling the item received. However, selling items of Waqf is not permissible and as such instead of the items alleviating their need, it can become a burden for them to bear. Further both options don’t guarantee an immediate return for their immediate need. Taking these issues into consideration, Waqf of movable items is of no use to the poor. This viewpoint serves to strengthens the viewpoint of Imam Abu Hanifah.

 

Some immovable items give long term recurring benefit

Immovable items such as houses and lands similarly may not provide immediate solutions to the immediate need of the poor. However, there remains a distinct difference between this and movable items based on which the latter cannot be inferred from the former.

Firstly, benefits attained from movable items are not perpetual as opposed to land and property which can be always utilized to farm crops. Additionally, if nothing is grown and reaped from the land at present, it does not affect the land being instituted as Waqf. It will remain within this designation even if not utilized in the manner it was endowed for. This is similar to a masjid which lays abandoned. Even though no salah takes place there at this moment it still remains within its designation of endowment as long as the possibility of it being utilized for it remains.

Secondly, though the need for food is a principle need, this does not negate the principle need for housing which is as important. Waqf of a land provides the stability of food, land, and housing, issues that are severely lacking from the Waqf of movable items.

 

A linguistic discussion on “Those your right hand possesses”

It has become quite evident that the verse, “those your right hand possesses from what Allah has returned to you,” is not against our standpoint at all. Rather, it accords merit to our view as the particle min (from) in mima (from what) shows Tab’id (partitivity).

Accordingly, two issues come to the fore. Firstly, the Prophet salla Llahu ‘alayhi wa sallam was not privy to ownership of the entire fay’ and secondly, the portion of which ‘ownership’ was afforded to him was as an administrator not as a titleholder. If not, he would have had singular ownership of the entire fay’ since the reason of its incorporation was singular.

The word Yaminuka (your right hand) carries a similar connotation. If ownership of the entire fay’ before distribution was intended, there was no need to specify Yaminuka (your right hand). The pronoun in Malakta (you own) would have sufficed.

 

The nature of the Prophet’s salla Llahu ‘alayhi wa sallam portion from the fay’

It is clear that the Prophet salla Llahu ‘alayhi wa sallam was not the owner before possession; however, the question of having a right in it—like that of a creditor in borrowed wealth and the warrior in booty—remains. Did the Prophet salla Llahu ‘alayhi wa sallam have such right in the wealth of fay’? Or was the relationship with the fay’ similar to the relationship of the poor in relation to the wealth of the rich in which they enjoy no such right whereby they can lay any claim? The Prophet’s salla Llahu ‘alayhi wa sallam relation with the wealth of fay’ was like of the latter group, he was simply a beneficiary, worthy of receiving a share from it.

There are two types of claims. Istihqaq Qawi (strong claims) which are also known as Istihqaq Fili, Istihqaq Shaksi, or Istihqaq Haqiqi. And Istihqaq Da’if (weak claims) which are also known as Istihqaq Infi’ali, Istihqaq Naw’i, or Istihqaq Majazi.

In Istihqaq Qawi (strong claims) the claimant has a tangible existent claim (Amr Wujudi) which serves as the basis for his claim. In the issue of debts, this is self-evident. Even in booty it is quite clear since jihad is a positively existent concept, which is probably the reason why attaining booty has been attributed to the slave instead of Allah subhanahu wa ta ‘ala—though all in reality is from Allah—in the following verse by use of the applicable pronoun:

 

وَاعْلَمُوْا أَنَّمَا غَنِمْتُمْ مِّنْ شَيْءٍ

And know that anything you obtain of war booty[8]

 

On the other hand, in Istihqaq Da’if (weak claims) there is poverty or insolvency, both concepts that are positively non-existent (Amr ‘Admi) which cannot serve as a tangible prospect to lay claim to. That is why a rich person will not be considered an oppressor by the merely not giving wealth to an insolvent person. Yes, if he doesn’t fulfil his religious obligations, he will be sinful, as he has not fulfilled the right of Allah subhanahu wa ta ‘ala; however, the insolvent person cannot demand anything from him. This point is further driven by the fact that when discharging the religious obligation of zakat, one is not obliged to give to every category mentioned in the verse outlining the various categories of recipients.

 

The categories of recipients are formulated on the basis of poverty

If, for arguments sake, we say that due to insolvency one is obligated to give, then to give all insolvent people would have been necessary. However, since this is not the case, is it also not necessary to give to every category. Poverty in most of the categories is self-evident, though in the Mu’allafat al Qulub[9] and the ‘Amilin[10] it is not.

The answer to this is that in the case of the latter, Mu’allafat al Qulub, they distribute it amongst the poor and as such it is just like giving to the poor. In the former giving them would result in a general increase of alms and in relation to them this was a kind of transaction. In the early days the Muslims were few and some of those who had accepted Islam did not have firm faith. A share was allocated to them which the Prophet salla Llahu ‘alayhi wa sallam would give to them; this resulted in the entrenchment of their faith. When a person receives from another, the love of the one giving is embedded into the heart of the one that receives. Through this method of giving the Mu’allafat al Qulub the love of the Prophet salla Llahu ‘alayhi wa sallam was embedded into their hearts which is the essence of faith. Since after the Prophet salla Llahu ‘alayhi wa sallam the number of Muslims increased manifold, this category became obsolete.

To summarize, in Istihqaq Da’if (weak claims) the recipients right is positively non-existent (Amr ‘Admi), due to which they cannot lay a claim. Yes, the command of Allah subhanahu wa ta ‘ala is an Amr Wujudi (existent right) which brings forth an obligation, therefore Allah subhanahu wa ta ‘ala can take one to task for non-fulfilment. The above demonstrates that poverty and insolvency merely allows for being on the receiving end which is equal amongst all the categories, thus anyone from the categories given will do.

Understanding this, it becomes clear that the Prophet salla Llahu ‘alayhi wa sallam did not have a right that rested on an Amr Wujudi in relation to the wealth of fay’. There was no debt owed to him by the disbelievers nor did they make any bequests for him. There was a possibility of it being ghanimah; however, Allah subhanahu wa ta ‘ala rejected this notion with the following verse:

 

وَمَا أَفَاءَ اللَّهُ عَلَىٰ رَسُوْلِهِ مِنْهُمْ فَمَا أَوْجَفْتُمْ عَلَيْهِ مِنْ خَيْلٍ وَلَا رِكَابٍ وَلَٰكِنَّ اللَّهَ يُسَلِّطُ رُسُلَهُ عَلَىٰ مَنْ يَشَاءُ وَاللَّهُ عَلَىٰ كُلِّ شَيْءٍ قَدِيْرٌ

And what Allah restored [of property] to His Messenger from them, you did not spur for it [in an expedition] any horses or camels, but Allah gives His Messengers power over whom He wills, and Allah is over all things competent.[11]

 

The right that the Prophet salla Llahu ‘alayhi wa sallam had in relation to the fay’ was then no doubt Istihqaq Da’if (weak claim) which is also the reason Allah subhanahu wa ta ‘ala attributed its procurement to Himself and not to the servants by the wording and what Allah restored.

Based on this the majority view of the scholars is that after the passing of the Prophet salla Llahu ‘alayhi wa sallam his right to the fay’ had fallen away. The Shia, who opine that his right had been inherited by the Imams have based their opinion on conjecture with no proof signifying the same.

 

A linguistic discussion on from what Allah has returned to you

If the word Afa’ (restored) in the verse is taken in its technical meaning to mean fay’ then there are two possibilities. Either the preposition min (from) in mima (from that) implies Tab’id (partitivity) or it implies Tabyin (clarification). If we take it to imply partitivity, it is evidently in our favour as already discussed. On the other hand, if we take it to imply clarification—which is far-fetched considering the context—then too it would not be against our understanding.

This discussion emerges only when considering its technical meaning. If, however, we consider its literal meaning then it would merely imply the returning or restoring by Allah subhanahu wa ta ‘ala of His property from the disbelievers to the administration of the Prophet salla Llahu ‘alayhi wa sallam. In such a case, there is no reason to consider the ‘ownership’ of the Prophet salla Llahu ‘alayhi wa sallam as returning or restoring of wealth in its literal meaning. This is the same in fay’ and ghanimah.

 

Determining the meaning of fay’

The use of Afa’ (restored) in the Qur’an is in two places; in Surah al Hashr and in Surah al Ahzab. Surah al Ahzab was revealed before Surah al Hashr as is explicitly mentioned in al Itqan under the discussion of the order of chapter revelation. The technical meaning of fay’ implies the procurement of property with no fight or battle as understood from you did not spur for it. If this was already included in the implication of Afa’ (restored) then there was no need for stating you did not spur for it, and since the word came into vogue the whole concept was shortened to just the word fay’. The point being, that since the verse in Surah al Hashr, which is the origin of the technical term, is meant in its literal meaning, the verse that was revealed before it in Surah al Ahzab would also be in its literal meaning.

By the grace of Allah subhanahu wa ta ‘ala the issues pertaining to the verse, And what Allah restored [of property] to His Messenger, has been explained in detail. As a result, any person of high or low intellect will understand that Fadak was not the property of the Prophet salla Llahu ‘alayhi wa sallam and it could not have been given as a gift nor could it have been inherited. Another detail that has become glaringly obvious is that the narrations of the Shia regarding the Fadak Estate are nothing more than lies and fabrications. It is impossible to conceive that the Prophet salla Llahu ‘alayhi wa sallam would gift someone from property that did not belong to him.

 

Continued misunderstanding of the Qur’an by the Prophet salla Llahu ‘alayhi wa sallam is an impossibility

The idea that the Prophet salla Llahu ‘alayhi wa sallam misunderstood the laws of the Qur’an is absurd. If the Prophet salla Llahu ‘alayhi wa sallam did not have deep insight into the Qur’an, then who would? How can it be that simpletons like us understand the inferences of the Qur’an and the Prophet salla Llahu ‘alayhi wa sallam doesn’t? Sure, if the Shia want to believe such then so be it. Yes, if it was a lay person of the Ummah one could say he had made a mistake in understanding the verses, but it is impossible that the Prophet salla Llahu ‘alayhi wa sallam would make a mistake and then not be counselled by Allah subhanahu wa ta ‘ala.

If—for arguments sake—we assume that the Prophet salla Llahu ‘alayhi wa sallam was under the impression that the Fadak estate was not part of the fay’, rather his property and so he mistakenly gifted it then it would have been necessary for revelation to come down, correct this misstep, and return the Fadak Estate.

 

The verse, And what Allah restored [of property] to His Messenger, is a Mukhassis of the verse, Yusikum Allah (Allah instructs you all)

Though for the Shia they don’t even have to go through the trouble of hypothetical scenarios as they believe in the doctrine of Bada’, i.e. that Allah can make a mistake [Allah subhanahu wa ta ‘ala save us from such folly].

In any case, there is no way that gifting of the Fadak Estate was possible, ergo Fatimah radiya Llahu ‘anha owning it is also an impossibility. In order to gift something, one must first own the item. Based on this, it is clear that inheriting the Fadak Estate was also not possible.

Another issue that comes to the fore is that if the verse Yusikum Allah (Allah instructs you all) applies to the Prophet salla Llahu ‘alayhi wa sallam and to others equally then too no finger can be pointed to Abu Bakr radiya Llahu ‘anhu as the verse And what Allah restored qualifies it and expounds on the wealth of fay’—in which the Fadak Estate is also included—as well as the position of the Prophet salla Llahu ‘alayhi wa sallam in relation to it.

 

The Fadak Estate is not included in Yusikum Allah (Allah instructs you all)

After an analysis of the verses it becomes clear that there is no need to qualify one with the other. When qualifying one verse with another the implication is that the laws derived from them are similar; however, this is not the case here. If Yusikum Allah (Allah instructs you all) applies to and includes the inheritance of the Prophet salla Llahu ‘alayhi wa sallam as well, then it would apply to that inheritance which he was the owner of as the laws of inheritance applies to that which one has ownership of. Since, the Fadak Estate was an endowment it did not fall under the ambit of ownership. Therefore, it does not fall under the laws of the verse under discussion. Further, if this verse was not present then we would have to look for a qualifier (Mukhassis) which is found in the narration:

 

ما تركنا صدقة

What we leave behind is charity.

 

However, it is clear that we are not in need of a qualifier since it was not under ownership that it be governed by the laws of inheritance.

Additionally, there are other examples where this verse has been qualified. For instance, a disbeliever will not inherit, a slave will not inherit, and a murderer will not inherit. These exclusions are not by other verses of the Qur’an, rather it is by the ahadith. Since this is the case then what is the matter with accepting the narration, what we leave behind is charity, as a qualifier? Thus, even if the verse, And what Allah restored, is not considered, this narration will serve as a qualifier. Such qualifying does not signal a contradiction, though if such qualifying is termed as a contradiction by some then such ‘contradiction’ is accepted by both the Sunni and the Shia.

 

True contradiction of the sources by the Shia

Not giving inheritance to the grandchildren of the deceased in the presence of the parents—as the Shia opine—is contradictory in the true sense. The grandchildren form part of the children without a shadow of doubt. And since Allah subhanahu wa ta ‘ala instructs inheritance in favour of the children, the grandchildren are also included therein. If the Shia require evidence for the grandchildren being part of the children, then they should consider the verse of Mubahalah which by consensus of both the Sunni and the Shia refers to Hassan, Hussain and others radiya Llahu ‘anhum. Here is the verse in reference:

 

فَمَنْ حَاجَّكَ فِيْهِ مِن بَعْدِ مَا جَاءَكَ مِنَ الْعِلْمِ فَقُلْ تَعَالَوْا نَدْعُ أَبْنَاءَنَا وَأَبْنَاءَكُمْ وَنِسَاءَنَا وَنِسَاءَكُمْ وَأَنْفُسَنَا وَأَنْفُسَكُمْ ثُمَّ نَبْتَهِلْ فَنَجْعَل لَّعْنَتَ اللَّهِ عَلَى الْكَاذِبِيْنَ

Then whoever argues with you about it after [this] knowledge has come to you, say, “Come, let us call our sons and your sons, our women and your women, ourselves and yourselves, then supplicate earnestly [together] and invoke the curse of Allah upon the liars [among us].” [12]

 

More evidence of this is the many instances of the Qur’an proclaiming:

يَا بَنِيْ إِسْرَائِيْلَ

O Children of Israel.

 

By which the children of Yaqub are meant. It is clear that none of the children of Yaqub ‘alayh al Salam were present during its revelation to the Prophet salla Llahu ‘alayhi wa sallam, rather it was his far descendants but here to the word children is used.

Another contradiction of theirs is that they opine that the wife will not receive inheritance from the land or from the value of the land. Similarly, maternal brothers and sisters will not receive inheritance from blood money. Further, a murderer will receive inheritance from the inheritance and blood money of the murdered in the case of an accidental killing.

All this is in stark contrast to the dictates of the Qur’an. The Qur’an speaks with generality regarding the inheritance of the wife, brothers, and sisters with no exception of inheritance from lands. Similarly, the narration states, “The murderer will not inherit”. The purport of the narration is general without exception, be it pre-meditated or accidental.

More contradictions are found in the form of the eldest son receiving the mushaf, ring, and other items of the deceased. Regarding this practice, the Shia present narrations that outline the actions of their Imams in as far as them not including it in the inheritance. Firstly, these narrations are narrated by only Shia reporters and secondly it totally contradicts the Qur’anic injunctions. If they present the excuse of the infallibility of their Imams, well, we only accept infallibility of the Prophets.

 

Explicit direction is worthy of following, whilst actions have the possibility of a distinct standalone law

Instruction by way of spoken word is prioritised over following the actions of even an infallible since there is a possibility that the act is unique to the infallible. Consider the tens of laws that are unique to the Prophet salla Llahu ‘alayhi wa sallam, for example, he was not restricted to four marriages and he was permitted to fast continuously whereas others were not allowed either. In an instruction by way of spoken word there is no such ambiguity.

Since the Shia opine the actions of their ‘infallible’ Imams are to be followed then what of the direct speech of the Prophet salla Llahu ‘alayhi wa sallam? Should priority not be given to that? The narration which states, “Our property will not be inherited, what we leave is sadaqah” is worthier of following based on the above discussion alone. Over and above that, the status of the Imams is nowhere close to that of the Prophet salla Llahu ‘alayhi wa sallam.

Another point of note is that the narration, “We (the Prophets) are not inherited from,” is an explanation of the verses of the Qur’an that deal with inheritance. Sure, it can be understood to be a qualifier; however, recognizing it as an explanation makes even more sense. On the other hand, the Shia narration neither serves as a qualifier nor as an explanation. It is a complete contradiction. It also holds no weight in comparison to the narration of Abu Bakr radiya Llahu ‘anhu. Even so, they consider their narration worthy of being a qualifier, then what is the issue with considering the hadith of Abu Bakr radiya Llahu ‘anhu as such due to which he did not hand over the Fadak Estate? He heard this narration directly from the Prophet salla Llahu ‘alayhi wa sallam, and did not pass judgment based on a foreign legal system!

If we disregard both the hadith of Abu Bakr radiya Llahu ‘anhu and the Shia narration and only look at the verse Yusikum Allah (Allah instructs you all) in the light of ‘aql (logic) and naql (reports) it becomes abundantly clear which side would be weightier.

In any case, holding the Shia accountable to every view of theirs is tiring. I am weary of constantly embarrassing them and I feel disinclined to keep refuting their falsities. If one reads these pages with impartiality, he will no doubt realise that there would be many other such absurdities of the Shia.

Nevertheless, since certainty results in ease, the remainder of Molvi ‘Ammar ‘Ali’s letter will also be considered and answered so that there remains no doubt of the reasons of its ludicrousness. Though my tasks at hand are many and I do not have much time, I find myself continuing with this effort. Thus, objections to the narration:

 

ما تركنا صدقة

What we leave behind is charity.

and to the verse:

فَهَبْ لِيْ مِنْ لَدُنْكَ وَلِيًّا يَرِثُنِيْ وَيَرِثُ مِنْ آلِ يَعْقُوْبَ

So, give me from Yourself an heir, who will inherit me and inherit from the family of Yaqub.[13]

and the verse:

وَوَرِثَ سُلَيْمَانُ دَاوُوْدَ

And Sulaiman inherited Dawood.[14]

Will be answered appropriately.

 

Another point to consider is that since we now know that the verse Yusikum Allah (Allah instructs you all) applies only to the Ummah and not to the Prophet salla Llahu ‘alayhi wa sallam the hadith in reference is not even needed. There is no question of inheritance in the wealth of the Prophet salla Llahu ‘alayhi wa sallam since he is not included in the ambit of this statute. To drive the point further the verse, And what Allah restored, establishes that the Fadak Estate was not even under his ownership. Thus, in reality there remains no argument. Now, even if someone establishes that the laws of inheritance apply to the Prophet salla Llahu ‘alayhi wa sallam then too it would not apply to the Fadak Estate. For inheritance to occur there must be prior ownership.

 

Even if the narration, “We (the Prophets) are not inherited from,” is not acceptable, it has no bearing on the Fadak Estate

If by the apparent contradiction of the narration and the verse, the narration is not acceptable then too it has no bearing on the Fadak Estate. Because firstly, the Prophet salla Llahu ‘alayhi wa sallam is already excluded from the purport of verse Yusikum Allah (Allah instructs you all) by way of indication. If we assume that there was inheritance in the wealth of the other Prophets then so be it, our discussion revolves around the inheritance of the Prophet salla Llahu ‘alayhi wa sallam. By token of the non-acceptance of the narration the Fadak Estate still cannot be considered for inheritance. Yes, if the verse Yusikum Allah (Allah instructs you all) is rejected then a case may be built.

Secondly, even if the estate of the Prophet salla Llahu ‘alayhi wa sallam were to be tied up according to the common law of inheritance, then too the issue at hand, the Fadak Estate, will not be included therein due to the purport of the verse And what Allah restored. If the Shia then want to reject this verse too and drag themselves out of the fold of Islam, then let them do so.

Nonetheless, the ruling issued by Abu Bakr radiya Llahu ‘anhu in not handing over the Fadak Estate was in complete conformity to the Prophetic teachings. We have no need to establish conformity between the aforementioned verses and narrations nor do we need to answer any apparent contradiction.

This entire issue is resolved by the tone of address in the verse Yusikum Allah (Allah instructs you all) and the indication in the verse And what Allah restored.

 

NEXT⇒ Determining the Nature of the Inheritance of the Prophets


[1] Surah al Hashr: 7.

[2] Surah al Hashr: 8.

[3] Surah al Hashr: 9.

[4] Surah al Hashr: 10.

[5] Surah al Ahzab: 50.

[6] Imam Muhammad and Imam Abu Yusuf.

[7] Surah al Hashr: 2-5.

[8] Surah al Tawbah: 41.

[9] Those who have just recently embraced Islam and are still weak in faith; they may be given Zakat so as bring their hearts closer to Islam.

[10] Those appointed to collect the Zakat, they are also considered as valid recipients on account of the effort they make in collecting.

[11] Surah al Hashr: 6.

[12] Surah Al ‘Imran: 61.

[13] Surah Maryam: 5, 6.

[14] Surah al Naml: 16.

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