Abu Dawud (24). If he transfers it to someone else, the second person takes his place, because the original owner has appointed him to his position. If he dies, his heir is most entitled to it, due to the Prophet's (peace and blessings of Allah be upon him) statement: "Whoever leaves behind a right or property, it is for his heirs" (25). If he sells it, the sale is not valid, because he does not own it, and therefore he cannot sell it, just like the right of pre-emption (shuf'ah) before taking it, or like one who is first to a mine or a permissible resource before taking possession of it. Abu al-Khattab said: It is possible that its sale is permitted, because it belongs to him. If someone else reaches it first and revives it, there are two views: One is that he owns it, because ownership is obtained through revival, and it is not obtained through fencing in (tahajjur). Thus, ownership is established by that which confers it, rather than by that which does not, just as in the case of someone who arrives first at a mine or a water source, and then another person comes and displaces him and takes it. The second [view] is that he does not own it, because the implication of his statement (peace and blessings of Allah be upon him), "Whoever revives a dead land that does not belong to anyone," and his statement, "in the right of a non-Muslim, it is for him" (27), indicates that it is not for him if a Muslim has a right to it.
(24) In: Chapter on the Fragmentation of Lands, from the Book of Leadership (Imarah). Sunan Abi Dawud 2/158. It was also recorded by al-Bayhaqi in: Chapter on Whoever Revives Dead Land..., from the Book of Reviving Wasteland. Al-Sunan al-Kubra 6/142. And al-Tabarani in al-Mu'jam al-Kabir 1/255. (25) Recorded by al-Bukhari in: Chapter on Debt, from the Book of Guarantee; in: Chapter on Prayer over One Who Leaves a Debt, from the Book of Borrowing; in: Chapter on the Prophet's Saying: Whoever leaves behind a burden or children, then it is for me, from the Book of Maintenance; in: Chapter on the Prophet's (peace and blessings of Allah be upon him) saying: Whoever leaves behind wealth, it is for his family, and Chapter on the Inheritance of the Prisoner, from the Book of Inheritance (Fara'id). Sahih al-Bukhari 3/128, 155, 7/87, 8/187, 193, 194. And Muslim in: Chapter on Whoever Leaves Wealth, It is for His Heirs, from the Book of Inheritance. Sahih Muslim 3/1237, 1238. And Abu Dawud in: Chapter on the Inheritance of Kin, from the Book of Inheritance, and in: Chapter on Provisions for Children, from the Book of Leadership. Sunan Abi Dawud 2/111, 124. And al-Tirmidhi in: Chapter on What Was Said Regarding Prayer over a Debtor, from the Chapters of Funerals, and in: Chapter on What Was Said Regarding Whoever Leaves Wealth, It is for His Heirs, from the Chapters of Inheritance. 'Aridat al-Ahwadhi 4/291, 8/239. And al-Nasa'i in: Chapter on Prayer over One Who Has a Debt, from the Book of Funerals. Al-Mujtaba 4/53. And Ibn Majah in: Chapter on Whoever Leaves a Debt or Burden, then it is upon Allah and His Messenger, from the Book of Charities, and in: Chapter on Kin, from the Book of Inheritance. Sunan Ibn Majah 2/807, 915. And Imam Ahmad in: Al-Musnad 2/290, 453, 456, 3/296, 371, 4/131. (26) In B and M: "and stone" (wal-hajr). (27) Its attribution was mentioned previously on pages 145, 146.
