Selling an old graveyard which was donated for the benefit of the Muslim public
Question:-
There is a plot of land that is privately owned by a family trust that was used as a Muslim graveyard many years ago . A few years ago the trustees attempted to sell the land to a developer but the sale was cancelled when he discovered that the land was used as a graveyard.
However, recently we noticed that there is construction happening on the land and would like to find out what the Islamic perspective is. I understand that if it is Waqf land and in a separate trust, then it cannot be sold, but can one build any structures (housing units etc.) on the land?
In this case, effectively the land, although it was used as graveyard many years ago, it is technically private land and can there be any development on the land?
It seems that they are not digging too deep so as to avoid digging up the graves, as the city gave them permission to build provided they don’t find any archeological or heritage artefacts (including bones!).
Below is a link to an article from 2013 which can provide some background. We are not sure if there has been any further developments regarding the sale of the land or not.
https://www.facebook.com/VOC91.3fm/posts/makbara-sale-offexclusive-part-1-it-began-as-a-property-that-was-offered-on-sale/10151592396067794/
I am engaging with municipality to find out what is happening and don’t want to make a statement as to what is permissible or not without first clarifying.
Answer:-
We understand from the article recorded on facebook titled “Makbara-sale” that the land under discussion was made Waqf (donated) for a Qabrastaan or Makbara (graveyard.) It seems from the article that the MJC have quite a bit of information on the matter, and they are confident that it was Waqf property, hence this has been mentioned several times in their article. It is also possible that they are in possession of some document or Waqf Deed confirming the Waqf.
Now, if the graveyard is Waqf property, then it is not permissible to sell the land nor develop on the land irrespective of how deep the developers may be digging. Any property or piece of land that is donated (made Waqf) either for a Masjid or Madrasah or graveyard, etc. cannot be owned by any individual, nor can it be borrowed or loaned to another, nor cannot it be left as collateral with anyone, nor can it be sold, nor will it be inherited by the family of the donor, etc. When the donor had donated the land to be used as a graveyard then his ownership of the land terminated and ceased immediately, and the land entered into the ownership of Allah Ta’ala.
Also, it is not necessary for the Waqf (donated land) to be legally registered in the name of the beneficiary or trust to be valid. By the donor stating that he has donated a particular piece of land for a graveyard, the Waqf will be valid and effective immediately according to Imaam Yusuf Rahimahullah. This means that even though the land may still be registered in the name of the family, but in reality, it belongs to the Muslim public and should be used for the sole purpose of burial. In conclusion, the Makbara or graveyard cannot be developed if it is Waqf property. It seems that it has been exclusively donated for the benefit of the Muslim public and should be used for the stipulated purpose only. We hope that the above explanation clarifies the matter.
فإذا تم ولزم لا يملك ولا يعار ولا يرهن (الدر المختار ص370 ج1)
وَفِي الشَّرْعِ عِبَارَةٌ عَنْ حَبْسِ الْعَيْنِ عَلَى حُكْمِ مِلْكِ الْوَاقِفِ وَالتَّصَدُّقُ بِالْمَنْفَعَةِ بِمَنْزِلَةِ الْعَارِيَّةِ، وَهَذَا قَوْلُ أَبِي حَنِيفَةَ، وَقَالَ أَبُو يُوسُفَ وَمُحَمَّدٌ هُوَ عِبَارَةٌ عَنْ حَبْسِ الْعَيْنِ عَلَى حُكْمِ مِلْكِ اللَّهِ تَعَالَى عَلَى وَجْهٍ تَصِلُ الْمَنْفَعَةُ إلَى الْعِبَادِ فَيَزُولُ مِلْكُ الْوَاقِفِ عَنْهُ إلَى اللَّهِ تَعَالَى فَيَلْزَمُ وَلَا يُبَاعُ وَلَا يُرْهَنُ وَلَا يُورَثُ قَالَ – رَحِمَهُ اللَّهُ – )الجوهرة النيرة ص333 ج1)
وَقَالَ أَبُو يُوسُفَ يَزُولُ بِمُجَرَّدِ الْقَوْلِ ؛ لِأَنَّهُ بِمَنْزِلَةِ الْإِعْتَاقِ عِنْدَهُ وَعَلَيْهِ الْفَتْوَى )الجوهرة النيرة ص333 ج1)
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 14 Rabi-ul-Aakhir 1444 / 09 November 2022