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Fatawaa


Subject : Islamic Ruling on Transferring a Deceased Person Buried in Land Owned by Someone Else

Fatwa Number : 3787

Date : 03-08-2023

Classified :

Fatwa Type : Search Fatawaa


Question :

A deceased person has been buried in land owned by someone else, is it obligatory for the deceased's relatives to purchase that land if it is sold at a lower price?



The Answer :


 

 

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

 

The deceased person has sanctity and dignity since Allah, The Almighty, Says (What means): "We have honoured the sons of Adam" [Al-Isra`/70]. Sharia doesn`t permit exhuming or removing graves so long as they contain bones because the sanctity of their dwellers is similar to that of the living. In Jordan, it is well known that the bones of the dead need a very long time to turn into dust. About the sanctity of the dead, Prophet Mohammad (PBUH) said: "Breaking a deceased body’s bones is exactly like breaking them when he is alive." [Abu Dawood]. He (PBUH) also said: "It is much better for one of you to sit on a live coal, which will burn his clothes and get to his skin than to sit on a grave." [Muslim].These texts highlight the sanctity of the dead and show that preserving their graves against harm is an obligation. Therefore, not exhuming graves and not violating their sanctity is honoring their dwellers.

 

The place where the deceased is buried is considered as an endowed land (Waqf), and it is not permissible to sell or dispose of it as long as the burial was done with the consent of the landowner. However, if the burial was done without the consent or knowledge of the landowner, then it is obligatory to move the deceased if the landowner does not agree to leave it there. In such a case, the land would be considered as unlawfully occupied, and the deceased and their relatives have no rights over it. It is known that the usurper has no sanctity, and the right of the living takes precedence. Al-Imam An-Nawawi said: "If someone is buried in an unlawfully occupied land, it is recommended for the landowner to leave it, but if they refuse, the deceased must be moved even if the body decomposed, became scattered, and its sanctity violated, as there is no sanctity for the usurper, and the oppressor has no right. Our fellow scholars unanimously agreed on this view." [Al-Majmoo', vol.5/pp.299].

 

The bottom line is that if the deceased was buried with the consent of the landowner, it is not permissible for the latter to request the removal of the body and the spot where it was buried becomes an endowment for it (deceased). However, if the burial was done without the consent or knowledge of the landowner, it is permissible for him/her to request the removal of the body. Yet, it is preferable for the landowner to leave the deceased in the spot where he/she was buried. If the landowner refuses to let the deceased remain and insists on removing the body, he/she has the right to do so, even if the body decomposed and its sanctity violated, as the sanctity of the living takes precedence.

 

In conclusion, it is allowed for the relatives of the deceased to buy that land if they desire to do so and the owner is willing to sell it. However, they are not obligated to do so, and the owner of the land cannot be forced to sell it. And Allah The Almighty Knows Best.

 







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