Question

Assalaamu Alaikum wa Rahmatullahi wa Barakatahu

It was said in one of the answers to the questions that for the land in the hands of the Kaffir, on which the Tenth (‘Ushr) is due, the Kharaaj is paid, because land is never idle. Also because the Tenth falls under Zakat and the Kaffir is not from the people of Zakat, therefore the Kaffir in possession of a land on which the Tenth is due will have to pay the Kharaaj, because land is not idle.

What is the evidence that land is never idle, meaning that the payment of Zakat of the Tenth or Kharaaj is obligatory, although the Zakat is only incumbent on certain varieties and if the quorum (Nisab) is reached? Hence all the lands on which the Tenth is due, but that are cultivated with other than the specified varieties, should not be submitted to neither the Tenth nor the Kharaaj. Also the Kharaaj is incumbent on Kharaaj land after conquer, i.e. the Muslims own the title of the land that have not been imprisoned.

Answer

Wa Alaikum Assalaam wa Rahmatullahi wa Barakatahu,

• Concerning your question for the evidence that land is never idle, meaning that either the tenth or half the tenth is paid as Zakat according to the legal provisions or the Kharaaj has to be paid on it...

The answer is: The evidence received from the provisions has described the land to be so, either land of the Tenth (‘Ushr) or of the Kharaaj. Among this evidence:

1. General evidence pertaining to all land, obliging the Muslim to either pay the Zakat in form of the Tenth or half the Tenth: «فِيمَا سَقَتْ الأَنْهَارُ وَالْغَيْمُ الْعُشُورُ، وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ» "The Tenth is due on what has been watered by the rivers and the sky, and half the Tenth on what has been watered artificially." In accordance with the Ahkam Shari'ah relating to the type of cultivation and its amount.

2. After conquer a new problem arose, which extracted the land from the general text and submitted it to the Kharaaj: «قَضَى رَسُولُ اللهِ صلى الله عليه وسلم فِيمَنْ أَسْلَمَ مِنْ أَهْلِ البَحْرَيْنِ أَنَّهُ قَدْ أَحْرَزَ دَمَهُ وَمَالَهُ إِلاَّ أَرْضَهَ، فِإِنَّهَا فَيْءٌ لِلْمُسْلِمِينَ؛ لأَنَّهُمْ لَمْ يُسْلِمُوا وَهُمْ مُمْتَنِعُونَ» "The Messenger of Allah (saw) decided over those who embraced Islam from the people of Bahrain that they had saved their blood and wealth, except their land. Therefore it is a Fay' (booty) for the Muslims, because they did not embrace Islam while they abstained."

Also what ‘Umar (ra) decided in relation to the land of As-Sawaad: "I decided to hold back the land with its men from the Kuffar, and impose the Kharaaj on it..."

3. Therefore all land in Dar al-Islam is subjected to Zakat, except a certain type that is subjected to Kharaaj.

4. The general ruling "All the land in Dar al-Islam belonging to the Muslim is subjected to Zakat" is applied in its generality and only what has been specified by another text on "the land of Kharaaj" is extracted from it.

5. This is the ruling on agricultural land. Were it not for the existence of texts relating to the land of Kharaaj, then the general obligation of Zakat on every land of its Muslim owner based on the Shar'i texts would have remained. There are no other provisions showing a type of land that falls under the obligation of payment. Rather either the Zakat or the Kharaaj is incumbent on the land. They are general texts, applicable to all forms of land.

6. From these evidences it is deduced that no land is idle.

• Concerning your question whether the Prophet (saw) imposed the Kharaaj on Kuffar who possessed land on which the Tenth is due: I have not come across this matter as far as I know. The aforementioned evidence is sufficient to know the Hukm Shar'i that we have deduced according to what we find most correct: The Dhimmis have to pay the Kharaaj if they own a land on which the Tenth is due, because the Zakat is imposed on the Muslim according to the legal provisions.

However, if you know something about it, you can send it to me for consideration and I would be thankful to you.

Your brother,
Ata Bin Khalil Abu Al-Rashtah

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