Cultivation in a Waqf Graveyard

Question

A certain graveyard is very extensive; it also has a part that has simply been lying idle for a very long time: at present there is no grave in it, nor can it be said with certainty whether the dead were ever buried in this part or not. This year a severe flood covered the graveyard with mud waist-high — which in our local usage is called “the sudden calamity”; there is no name or trace of a grave left. One man knowingly and deliberately sowed paddy (unhusked rice)

Answer

In a graveyard endowed as waqf for burying the dead, cultivation is not permissible, whether or not there are actually graves in it at present: [ar]لِأَنَّ شرط الواقف كنص الشارع[/ar] “because the stipulation of the waqif is like the text of the Lawgiver.” Thus in “Radd al-Muhtar”. Now, as for the paddy that has grown in it, it is better that it be given in charity (sadaqa)

Source: Fatawa Mahmudiyya

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