Giving Palmyra Palms in a Graveyard to a Non-Muslim on an Annual Contract Is Not Correct

Question

Question: In our village there is a Muslim society, under whose supervision the upkeep of the graveyard also falls. In the graveyard there are some fruit-bearing and some non-fruit-bearing trees, from which a considerable sum is obtained. Among all the trees there are also some palmyra palms. Those in charge of the said society auction these palmyra palms to the Pasis (a Hindu caste of palm-sap tappers). The Pasis draw palm sap from these palmyra palms, which goes on being sold all day starting after the sun (?)

Answer

This contract is not permissible according to the Shari‘a, because a contract, that is, ijara (hire), is the transfer of ownership of benefits (manafi‘) for a consideration, whereas here it is not benefits: those people obtain the substance itself (‘ayn). Nor is it a sale, because in the case asked about the object of sale is neither specified nor of a known quantity. (1)

Source: Fatawa Mahmudiyya

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