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 original case in analogical deduction is that it isn`t permissible to eat the fruits of the trees planted near houses or in home gardens save with the permission of their owners since the Messenger of Allah (Peace and blessings be upon him) said: "A Muslim`s property may not be taken except with his goodwill." {Related in Mosnad Ahmad}.
However, it is possible to take someone's leftover and fallen fruits after the harvesting of trees under three conditions:
1-Picking up the fruits left on the trees after being harvested by their owners, not before that.
2-The trees aren`t surrounded with a fence nor close to the house; otherwise, permission of owner must be sought.
3-The owner will most likely not object to his leftover and fallen fruits to be taken as this is the customary practice amongst the people.
4-The person picking these fruits must be keen on keeping the trees intact.
If these conditions are met, then there is no sin on the person picking these fruits. It was stated in the Shafie book {Moghni Al-Mohtaj, Vol.3:P.592}:"As for picking wheat spikes during the harvest season, this is permissible if the owner will most likely not object to that nor be interested in picking them up himself; otherwise, this isn`t permissible. Moreover, it doesn`t matter whether the person picking them is amongst the eligible recipients of Zakat or not because the Salaff and the Khalaf overlooked of taking this small amount. However, Al-Zarkahshi is of the view that it isn`t permissible for the person who isn`t an eligible recipient of Zakat to pick up these wheat spikes." And Allah the Almighty knows best.
[1] In the Islamic context, the term salaf refers to early Muslims who were companions of Prophet Muhammad, those who followed them and the scholars of the first three generations of Muslims.
[1] The 'Khalaf' are those who came after the Salaf. The Salaf, as can be found in the authentic narration, "The best of mankind is my generation, and then those who come after them, then those who come after them."
