Salafi cults have often quoted from scholars of the Shafi school of Ahlus Sunnah, especially Imam Shafi (رحمه الله), Imam Nawawi (رحمه الله) and Imam Ibn Hajr al-Haythami (رحمه الله) to give the impression that the scholars of Sunni Islam sanction their views on the subject of mausoleums. Many of them even believe their position on this subject is an absolute consensus in Sunni Islam, while the reality being far away from what they think.
The importance of Shafi scholarship is also due to fact that many of the lands of Muslims where these Kharijites of various trends and iterations have raised their heads in our times imposing their Dajjalic cult upon Muslims, shedding sacred blood, trampling upon scared rights, oppressing Muslims & Non-Muslims alike such as in Syria, Iraq, Yemen, Somalia, Egypt and Chechnya, the vast majority of the Muslims in these lands historically as well as present day are adherents of the Shafi school, and it is in these lands that they are going about desecrating the maqams of the pious Imams, Sahaba and the Prophets of Islam as well as annihilating the history of Islam and mankind. To the Salafi cults who reject the authority of Imams, schools and history of Sunni Islam, this might not be significant as they are known to favor their own personal opinions over anything. But for the rest of the general population of Muslims it is important they have an understanding of where the pious predecessors and authorities of Orthodox Islam actually stand, so that they do not fall into being religiously blackmailed by these puritan charlatans and watch in silence when Islam which our noble predecessors with great struggle and hardship handed down to us is being destroyed before our eyes one piece at a time.
To begin, it is valuable to understand the overall position of the Shafi school as a whole, so that one can appreciate the various contexts/elements that come into picture when the subject was addressed by scholars:
In the book “Defense of the Sunnah“, Ibrahim al-Shaghouri writes as a summary of the view of the madhabs:
As for what the four madhhabs state, it can be summarized as follows: Building structures around tombs is in itself something permissible. It becomes disliked (makruh) if the structure is directly above the tomb (in every case), or if the structure is around it and it takes up space and creates less room for burial of other Muslims (if this is in a public graveyard, without it being disliked if in privately owned land). It becomes extremely disliked or forbidden if the intention behind the structure is to show-off or compete with others or if it involves wasting of money and resources; but if the intention is to simply distinguish it from other graves, then it is permissible. One can also find in each of the madhahib an exception(from the general dislike) made for the righteous and the scholars, around whose tombs structures become permissible, as also proven by the historical fact of every generation of Islam seeing such structures being constructed and not later removed (such as the structure of Imam Shafi’is tomb in the Qarafa cemetery of Cairo). They also stated that any structure already built around a tomb should only be brought down if it is in publicly-owned graveyards. Not a single one of the scholars in any of the madhhabs mentioned that the dislike (or prohibition if building on publicly owned land) is due to it being shirk or a means to shirk. If it was shirk, they would not have confined themselves to saying it was (only)disliked, nor would they have differentiated between public or private lands!
The late Sheikh Muhammed Said Ramadan al-Buti (رحمه الله), who adhered to the Shafi school of jurisprudence, gave the following verdict:
My question is for Sheikh Muḥammad Saʿīd Ramaḍān al-Būṭī. Praise be to Allah, Lord of all creation, and blessings and peace be upon the one whom was sent as a mercy to all of creation as well as all of his family and his Companions, āmīn. To proceed: Indeed there are youths who have been secretly propagating their ideas under the shade of darkness, and they have been declaring those who visit the graves of the righteous to be heretics. It has reached me (and I am asking this question from Libya) that they may even call these people disbelievers. Today, after the collapse of the regime, the country has witnessed what it has witnessed, and they have come out against us showing a different face, which is to purify the country of the idolatry that is embodied in mausoleums and domes. They began by removing them, demolishing them and flattening them to ground level using heavy equipment, and maybe explosives and bombs. Likewise, they dig up graves based on the pretext that it is obligatory to be buried in a Muslim graveyard. The problem has spread extensively. For example, in the city of Misrata, which is where I live, they have demolished thirteen domes, each containing a righteous friend of Allah, virtuous scholar or sheikh from the household of the Messenger of Allah. Indeed, it has reached me that they have even demolished the dome of the revered Companion Abū Sajīf and dug up his grave. My question is: what is the ruling for building mausoleums and domes over graves and what is the ruling for demolishing them after they have been built? And what are we obliged to do in the face of this campaign? Please, ya Sayyidī, provide the relevant evidences. I ask Allah to grant you well-being, to increase you from the abundance of His favour and to reward you with the best of rewards on behalf of this Ummah. We also ask you for your supplications.
Answer ( from the Great Scholar and Martyr, Muḥammad Saʿīd Ramaḍān al-Būṭī):
What is agreed upon is that the best graves are the smoothed down ones, and it is disliked (makrūh) to raise a grave. Rather, it is preferred to flatten it and there is no harm in it being a hand span or so above the ground. There is also no harm in it being raised above the ground with a stone or something similar. As for placing a building over the grave, if the grave is in open country or a place that is exposed to damage, i.e. outside the boundaries of a graveyard, then there is no harm in placing a building or an iron fence in order to protect it. As for a grave within a graveyard that has been dedicated as an endowment (waqf) for the deceased to be buried in, it would be unlawful to place a building over it because that would necessitate restricting the space around the grave from being used for the purpose that it was dedicated for. However, if a building would not necessitate such then there is no harm, such as placing a building around a number of graves belonging to the same family, as all the land within the building will be occupied by graves.
Furthermore, as for digging up a grave, it is not permissible unless it is to wash the deceased if they were buried without being washed. As for any other reason, it is not permissible by consensus, even if the deceased were buried without being prayed over, in which case the situation is rectified by praying over the person while they are buried in their grave. As for buildings and domes, it is not permissible to demolish any part of them, with the exception of a building that takes up land from a graveyard dedicated as an endowment and thus restricts its use by other people, for such a building is unlawful and must be demolished.
As can be noticed, there are a number of conditions & classifications that are considered in the Shafi school. From among them the following are relevant here:
1) The general ruling on mausoleums, as derived from the hadith is that of being Karaha/Makruh(disliked, reprehensible). But the Salafiyya treat this subject as though its a matter of Shirk and Tawhid.
2) The ruling is further classified between a land in private ownership or outside the bounds of graveyards, from lands that are designated as waqf or public graveyards. In case of the first (which is the category most of the mausoleums in Muslim world fall under), the construction is permissible while in the case of the latter, than building anything whether a home, market or mosque let alone a mausoleum would have the same ruling of being haram because the cause of the prohibition or dislikeness is due to illegal use of the land or because of restricting space and preventing movement and burial of others in a place where all Muslims have equal right to burial.
3) The ruling is further differentiated between graves of general people from the graves of Prophets, Righteous and Scholars of Islam. The latter are an exempted from the general ruling of “makruh” because their graves are recommended to be visited, preserved, protected and honored and a mausoleum facilitates this.
Now here for the third case, within the Shafi school a number of scholars have allowed this exception to include public graveyards as well (and not just private lands in which case the permissiveness is well established). Even though not the relied opinion of the school, it is still a valid opinion within the Shafi school and perfectly legitimate for an adherent of Shafi school to follow. An opinion not relied nor majority in the Shafi school, is not the same as being a lone opinion.
Some of the Salafiyya have a twisted argument whereby they argue that “even if you may have a valid opinion, i still have the right to impose my opinion on you” as an excuse to vandalize graves. But such reasoning is silly and against the established rules the scholars have agreed with regards to forbidding the evil (i.e., Al-Amr bil-Ma’ruf wan-Nahiu ‘anil-Munkar) that one cannot impose by force on matters that Muslims have legitimately disagreed. Only exception here is when an individual’s burial in a public graveyard is being directly obstructed due to a structure in which case there will obviously be allowance. Otherwise any such issues are subjects that righteous scholars of Muslims with authority of rulers will look into and decide on and not forceful imposition by one group. Besides, such vandalism in the case of the Kharijites we face today has become their slogan and a way of imposing their beliefs, practices & dominance upon Ahlus Sunnah and hence there is absolutely no reason one should give allowance or be passive to it under the false pretext of difference of opinion.
Below are quotes from the Imams of the Shafi school where one can notice the permissiveness of mausoleums in one of the following ways:
1) Permissiveness of building over graves in private owned lands,
2) Permissiveness of burial at home,
3) Permissiveness of building over graves of Prophets, Scholars and the Righteous and considering it a pious practice,
4) Scholarly explanation of the narration that curses those who take graves as “masajid” (which the Salafiyya explain as prohibition of mausoleum/mosque being built at the grave), to mean a prohibition of taking graves as a “place of prostration” (i.e. literal meaning of the word masajid) or taking the graves as a Qibla for prayer; while at the same time explicitly mentioning that this narration does not prohibit masjid being built or prayer being held besides the grave,
5) Biographical/historical books written by Shafi scholars recording numerous instances of mausoleums existing over the graves of the Sahabah and the Righteous, without any condemnation.
Classical Shafi scholars permitting mausoleums
1) Imam al-Shafi (d. 204H):
“I have seen the governors who demolished[tombs] in Mecca built inside the city, and I found no jurist who saw therein a wrong decision. If it was a question of tombs on land owned by the dead in their lifetime or bequeathed to their offspring, nothing that was built on their part was destroyed. Only that which no one called his own was demolished. The demolition took place so that the space around the tomb would not be inaccessible to[other] people or prevent others from being buried there, and to avoid people’s being harmpered.” [al-Umm 1:277]
This quote of Imam al-Shafi is always subject to Salafi chop work. They mention the first line while the rest that shows a different perspective is kept hidden. From the statement of Imam al-Shafi it is very clear that firstly there used to be structures over graves of Muslims as early as the time of Imam al-Shafi and that too in Mecca itself. And that those which were demolished were only those built in public graveyards and for a very specific reason, which is the hampering of space. This is unlike the Khawarij of today who rabidly destroy them with the pretension that they are destroying idols and bringing monotheism to the lands of Muslims.
Imam al-Shafi being a student of Imam Malik, and Imam Ahmed being a student of Imam Shafi, it is also not surprising other madhabs have a similar opinion as well. See previous post Imam Ibn Muflih al-Hanbali (D. 763H) on the permissiblity of building over graves.
2) Abu Sahl as-Suluki (d. 369H), the Shafi scholar from Nisabur “was buried in the gathering place where he used to teach”, as related by Imam Nawawi in “Muhtasar tabaqat al fuqahd”, p.204.
3) Imam al-Mawardi (d.450H):
writes that the impermissibility of building a dome or house over the grave is only restricted to lands that are not in private ownership (and hence allowed if lands are under private ownership):
قَالَ الشَّافِعِيُّ وَرَأَيْتُ الْوُلَاةَ عِنْدَنَا بِمَكَّةَ يَأْمُرُونَ بِهَدْمِ مَا يَبْنُونَ مِنْهَا، وَلَمْ أَرَ الْفُقَهَاءَ يَعِيبُونَ ذَلِكَ عَلَيْهِمْ، وَإِنْ كَانَ ذَلِكَ فِي مِلْكِهِ فَإِنْ لَمْ يَكُنْ مَحْظُورًا لَمْ يَكُنْ مُخْتَارًا.
4) Imam Abd al-Karim Al-Qushyari (d. 465) and his son Abu Said(d. 494) were buried in their Madrasah in Nisabur, as related by Imam Nawawi in “Muhtasar tabaqat al fuqahd”, pp. 484 and 490.
5) Imam al-Shayrazi (d. 476):
in his Al-Muhadhab Fi Fiqh Al-Shafi’i says its permissible to bury an individual at his home (which is the same as having a building over a grave, like the tomb of Prophet Muhammad peace and blessings be upon him):
6) Imam al-Juwayni (d.478):
in his Nihayatil Matlab Fi Darayatil Madhab says it is permissible to build over a grave if the land is in the persons ownership:
7) Imam al-Ghazzali (d.505):
in his “Al-Wasit” says it permissible to make a Will/Bequest to build over the grave of Prophets and Mashaikh for the purpose of ziyarah (visitation):
It is to be noted that this statement of Imam al-Gazzali then continued to be consistently carried over and expanded upon in the later manuals of Shafi madhab, as can be seen in later quotes.
8) Imam al-Baghawi (d. 516H):
in his book “التهذيب في فقه الإمام الشافعي” mentions it is permissible to have burial at a home because the grave of the Prophet (صلى الله عليه وآله وسلم) was in the room of his wife, Aisha (رضي الله عنه):
9) Imam Yahya bin Amrani ash-Shafi (d.558H):
in his book البيان في مذهب الإمام الشافعي says that a person can build over the grave if land is in his ownership:
10) Imam Abd al-Qahir as-Suhrawardi (d.563H) was buried in the madrasah he had founded, as related by Ibn al-Jawzi in “Al-Muntazam fi Tarikh al-Muluk wal-Umam” X p. 225.
11) Imam Ibn al-Asakir (d. 571H):
in his Tariqh Dimashq mentioned the existence of graves with domes over it and he makes no objections regarding them.
12) Imam Ibn Abd as-Salam (d. 577H):
as related by Imam al-Bujayrimi, that when dispute rose with regards to the construction on graves at the Al-Qarafa cemetery in Egypt, Imam Ibn Abdas Salam gave the fatwa that allowed the demolishment of those at Qarafa graveyard with the exception of the Mausoleum of Imam al-Shafi based on the reason that it was on the land of Ibn Abd al-Hakam (in whose land Imam al-Shafi was laid to rest) and not part of the Qarafa graveyard:
We again clearly see the distinction between public graveyards and private lands being put into practice by the Shafis.
13) Imam Sayf ad-Din al-Amidi (d. 631H):
as cited by Imam Ibn Hajr al-Haythami in “Fatawal Kubra”, permitted building on privately owned land
14) Imam al-Nawawi (d. 676H):
in his book Rawdah-Talibeen mentions similar to Imam al-Gazzali that it is permissible to build over graves of Prophets and Saliheen for purpose of Visitation and Tabaruk (blessings)
Furthermore Imam Nawawi in his book تهذيب الأسماء واللغات records the existence of domes over the graves of
- Ibrahim bin Abi al Qasim (r), the son of Prophet Muhammed (peace be upon him):
- Prophet Shuaib (peace be upon him):
- Aqeel bin Abi Talib (r), a companion of the Prophet (pbuh):
- Imam Malik (رحمه الله):
as well as others. Note that the resting place of the likes of Imam Malik (rah.) is at Janat al-Baqi cemetery in Medina, which goes onto show that such domes in al-Baqi cemetery existed long before the Ottomons came to power (the Wahhabiyya usually make the allegation that they are of Ottoman origins).
Imam Nawawi related all these instances without objection nor branding them as heretical. On the contrary we find Imam Nawawi positively stating that the dome that existed over the grave of Imam Shafi (which was by the way one of the most grand mausoleums of his time), to be in its grandeur perfectly befitting him. In his book Sharh al-Muhadhdhab, he writes:
See more in previous post: Mausoleum of Imam al-Shafi
15) Imam al-Baydawi (d. 685H):
in his book “تحفة الأبرار شرح مصابيح السنة” explains the narration that curses those who take graves as “masajid” :
” وعن عائشة رضي الله عنها: أنه – عليه السلام – قال: لعنة الله على اليهود والنصارى “الحديث.
لما كانت اليهود والنصارى يسجدون لقبور الأنبياء تعظيما لشأنهم ويجعلونها قبلة , ويتوجهون في الصلاة نحوها , فاتخذوها أوثانا = لعنهم ومنع المسلمين عن مثل ذلك ونهاهم عنه , أما من اتخذ مسجدا في جوار صالح , أو صلى في مقبرته , وقصد به الاستظهار بروحه , أو وصول أثر من آثار عبادته إليه , لا التعظيم له والتوجه نحوه فلا حرج عليه , ألا ترى أن مرقد إسماعيل – عليه السلام – في المسجد الحرام عند الحطيم , ثم إن ذلك المسجد أفضل مكان يتحرى المصلي لصلاته , والنهي عن الصلاة في المقابر مختص بالمقابر المنبوشة , لما فيها من النجاسة.
mentioning that the prohibition is with regards to prostrating towards graves out of veneration and taking it as qibla for prayer, while in case of one taking a masjid in the vicinity of a righteous person, and prays at his tomb, with intention of remembering his soul……. without veneration or facing it, then there is nothing wrong, and cites example of the grave of Prophet Ismail (AS) which is at Masjid al-Haram. And further clarifies that the prohibition of praying at graveyards is related to impurity.
16) Imam Ibn al-Raf’ah(d.710):
says (as translated by others), “There is no doubt that mausoleam and tomb-mosques have existed all over the Islamic world, from former times up to our own. It is not known of any learned or righteous person or of those responsible for religious affairs that they opposed this usage, be it by word or deed, though there is likewise no doubt that they would have the means to do so.” [Haytami in Fatawa Fiqhiyya II p.16]
17) Imam al-Dhahabi (d. 748H):
in his work “سير أعلام النبلاء” mentions without any objection the existence of a great dome that was built by the Abbasid Caliphate over the grave of the uncle & companion of the Prophet (pbuh), Al-‘Abbas ibn ‘Abd al-Muttalib (رضي الله عنه), at the al-Baqi cemetery of Medina.
وَعلَى قَبْرِهِ اليَوْمَ قُبَّةٌ عَظِيْمَةٌ مِنْ بِنَاءِ خُلَفَاءِ آلِ العَبَّاسِ
and similarly mentions without objection the existence of a great dome over the tomb of Imam Abu Hanifa (رحمه الله)
[Ibn al-Jawzi (d. 597H) in “Al-Muntazam fi Tarikh al-Milouk wal-Umam” mentions in detail the construction of the mausoleum of Imam Abu Hanifa and a Hanafi school besides it, that took place during the time of the Seljuq ruler Alp Arsalan in 459H]
18) Imam Shihabudeen al-Adhrai (d.783):
as quoted by Ibn Hajr in “fatawal kubra” explains that it is permissible to build on the grave of Awliya and Saliheen for purpose of visitation and tabaruk:
19) Imam Badr al-Din al-Zarkashi (d. 794H):
In his book “Al-Khadim” says (as translated by others), “The early Muslims (Ar. Salaf) (Allah be pleased with them) witnessed this greater and lesser graveyard (in Cairo) in the past. Graves and structures were constructed in it, yet none of the scholars of the time opposed it in word or action. He [m: (i.e., Al-Ansari)] says, “they built the dome of Imam Al-Shafi’i (Allah be pleased with him) and his academy in it and the other shrines are like this.”
[m: After finishing up the quotation from Imam Sharaf Al-Deen Al-Ansari (d. 662H), Al-Zarkashi says: ]
One of the late scholars said, “his [m: i.e. Al-Ansari’s] words indicate that building in public graveyards is not forbidden.” And if it is not forbidden to build in public graveyards, then a fortiori, it is not forbidden to build in wastelands or private property with the permission of the owner.
One of the late scholars of our imams mentioned beautiful words that support the permissibility of building atop graves, “[m: Scholars] have mentioned the validity of leaving a bequest to construct Al-Masjid Al-Aqsa and the graves of the prophets (peace and blessings of Allah be upon them). Sheikh Abu Muhammad incorporated the graves of scholars and the righteous under this [m: ruling] because it entails reviving visitation [m: of their shrines]. In Al-Waseet and Al-Ihya, Al-Ghazali says that which indicates the permissibility of building atop the graves of the scholars of religion, sheikhs of Islam, and other righteous people. It is not far-fetched that this permissibility is based on honouring them.
Like Al-Waseet and Al-Ihya, Sharh Al-Tanbeeh by Imam Ibn Al-Rif`ah contains that which indicates the permissibility of building [m: atop graves], or rather, its praiseworthiness. There is no doubt regarding this, for it is found in all the lands of Islam in the past and present.
None of the scholars or righteous people, who are the guardians of the religion, have been referenced as having opposed this in word or action, yet there is no doubt that they were able to do so. And Allah Most High knows best.”
20) Imam Taqi al-Din al-Hisni al-Shafi’i (d.829AH):
in his “Kifayat al-Akhyar” says it is permissible to make a bequest to build over the grave of the Prophets, Saliheen and Ulema.
21) Imam Ibn Hajr al-Asqalani (852H):
in his renowned commentary of Sahih al-Bukhari, quotes Imam al-Baydawi’s explanation of the narration that prohibits taking graves as masajid,
(As translated by others):
Al Baydawi said, “Because the Jews and Christians would prostrate towards the graves of the Prophets out of veneration of them, and make them (their graves) a Qibla towards which they face in their salat, and took them as idols, he (asws) cursed them and forbade the Muslims from such acts. As for the one who takes a place of worship (masjid) in the vicinity (jiwar) of a righteous servant, and by that intends to gain blessings (tabarruk) from proximity to him, and not veneration of him, nor directly facing him, then this does not enter under the warning and curse in this hadith.”
22) Imam Shams ad-Din al Sakhawi (d. 902H):
in his book on the history of Medina “التحفة اللطيفة في تاريخ المدينة الشريفة” relates numerous cases of graves of Sahaba, Salaf and scholars with domes over them, and related them all without any objections.
Quoted below is one example where the grave of Hamza bin Abdul Muttalib (رضي الله عنه) and his nephew Abdullah ibn Jahsh (رضي الله عنه), both martyred during the Battle of Uhud and buried in the same location, had a dome over the grave and was a place of visitation and where blessings were sought:
23) Imam Suyuti (d. 911H):
in his commentary of Sunan Nasai explains the narration that curses those who take graves as “masajid” by quoting the explanation given by Imam al-Baydawi (translated earlier):
نَحْوَهَا وَاتَّخَذُوهَا أَوْثَانًا لَعَنَهُمْ وَمَنَعَ الْمُسْلِمِينَ مِنْ مِثْلِ ذَلِكَ فَأَمَّا مَنِ اتَّخَذَ مَسْجِدًا فِي جِوَارِ صَالِحٍ وَقَصَدَ التَّبَرُّكَ بِالْقُرْبِ مِنْهُ لَا التَّعْظِيمَ لَهُ وَلَا التَّوَجُّهَ نَحْوَهُ فَلَا يَدْخُلُ فِي ذَلِك الْوَعيد
24) Imam al-Samhudi (d.911H):
in his work وفاء الوفاء بأخبار دار المصطفى relates several mausoleums in Medina without any objection, among them the Mashhad of Malik bin Sinan, the companion of the Prophet and father of Abu Said al-Khudri,
25) Imam al-Qastallani (d. 923H):
in his work إرشاد الساري لشرح صحيح البخاري which is a commentary on Sahih al-Bukari, when explaining the narration of the wives of the Prophet describing what they had seen of the Church in Abyssinia that was built over a grave with images/idols over it, that
if a masjid was built in the vicinity of righteous person, seeking tabaruk near it, and not veneration or facing it, then it does not fall in the prohibition mentioned in the hadith.
and elsewhere the Imam quotes in explanation of the same hadith, from the Shafi jurist Imam Abu Ali al-Bandaniji (d.425H):
who says that it is Qaraha (disliked/reprehensible) to build a masjid over the grave, however if built around the grave then there is nothing wrong.
as well as quotes Imam al-Baydawi’s explanation (translated earlier):
فأمَّا من اتخذ مسجدًا في جوار صالح، وقصد التبرك بالقرب منه، لا للتعظيم ولا للتوجه إليه، فلا يدخل في الوعيد المذكور.
26) Sheikh ul Islam Zakariya al-Ansari (d. 926H):
in his work أسنى المطالب في شرح روض الطالب , under the section of funerals, after mentioning the prohibition with regards to building over graves, then mentions the exception for the Prophets and righteous by quoting from Imam al-Zarkashi:
and at a later section says:
that building over graves is not suitable because the dead are to decay but the graves of Prophets, righteous and scholars are exempted from this.
27) Imam Ibn Hajr al-Haythami (d. 974H):
in his work تحفة المحتاج في شرح المنهاج, under the chapter of funerals writes
that it is permissible to build over the grave of the righteous for purpose of visitation and tabaruk.
and in the chapter of Wills he writes:
that building a dome over the grave of a scholar is a pious act.
and writes similar elsewhere:
In his work الفتاوى الفقهية الكبرى when it was asked as to why in the works of scholars (like Imam al-Nawawi) one sees under the chapter of funerals, the ruling that it is makruh to construct over graves yet also sees in chapter of Wills/Testaments that it is permissible to do so over graves of Prophets and righteous, he answers that the latter permissibility is with regards to private lands while the former dislikeness/prohibition is with regards to public graveyards.
وأما المسألة الثالثة فالحاصل من اضطراب وقع للشيخين فيها أن قولهما في الجنائز يكره البناء على القبر مرادهما بناء في ملك الشخص أو غيره بإذنه فإن أراد المسبلة أو الموقوفة كان مرادهما كراهة التحريم وما ذكراه في الوصايا محمول على غير البناء في المسبلة
In the same work, he also answers a related question (as translated by others):
“Question: Given that the tomb of one of the companions of the Messenger of God is sheltered by a mausoleum (qubbah) and someone wishes to be buried beside it though there is not sufficient space to do so unless a small part of the (already existing) mausoleum is removed: is this removal permitted ? If you consider it permitted, it will be done, but if you consider it forbidden, then how would that agree with what as-shafii said, ‘I saw the governors in Mecca ordering the destruction of funerary structures, and the jurists did not raise their voice against them’?
Response: If this mausoleum is built in an appointed (i.e. ‘communal’ or public) cemetery, as is normally the case with local burial sites, then the destruction is justified and everybody is entitled to do so. If, however, (the mausoleum is built) only upon a specific grave (i.e, on land privately owned) and not in a public cemetery, then nobody has the right to destroy it, for example if someone wishes to be buried beside it, as mentioned in the question”. [al-Haytami, Fatawa Fiqhiyyah II p. 7]
As one can clearly see from the above the Shafiis clearly distinguished between private lands and public cemetery, prohibited destroying that which was built on private owned land and also explicitly permitted without any dislikeness constructing over grave of Prophets and Righteous in private owned lands.
Lastly, on the narration that curses those who take graves as masajid, Ibn Hajr al-Haythami in his work Az-Zawajir explains (as translated by others):
“Taking a grave as a place of worship means to pray on the grave or towards it. The prohibition, moreover, applies exclusively to the grave of someone venerated… under the two conditions: a) that the grave is of someone who is honored and venerated; b) And that the prayer is performed towards or on the grave with the intention of gaining the blessing of it, or out of reverence for it.”
28) Imam al-Khatib al-Shirbini (d. 977H):
in his work مغني المحتاج under chapter of funerals writes permitting mausoleum over graves of Prophets and Righteous:
and in chapter of testaments writes:
29) Imam Shams al-Din al-Ramli (d. 1004H):
in a similar manner explicitly permits building mausoleum over graves of Prophets and Righteous:
30) Hafiz al-Munawi (d. 1031H):
in his work فيض القدير explains the narration prohibiting taking graves as masajid by relating from al-Baydawi:
that it is with respect to prostrating to the grave and taking it as qibla, and does not apply if masjid was built in the vicinity:
31) Imam Shihab ad Din al-Qalyubi (d.1069H):
in the work known as حاشيتا قليوبي وعميرة under chapter of funerals, excludes the structures over tombs of righteous and scholars from the ruling of demolishment:
32) Imam Ali bin Ali al-Shabramalisi (d. 1087H):
in the work known as حاشية الشبراملسي,
33) Imam al-Bujairimi (d. 1221H):
in the work حاشية البجيرمي على الخطيب,
34) Imam Abu Bakr al-Dimyati(d.1302):
in the work إعانة الطالبين على حل ألفاظ فتح المعين,
وقوله نحو قبة، أي كقنطرة.
وقوله على قبر نحو عالم، كنبي وولي.
وعبارة النهاية: وشمل عدم المعصية القربة كعمارة المساجد ولو من كافر، وقبور الأنبياء والعلماء والصالحين لما في ذلك من إحياء الزيارة والتبرك بها.
ولعل المراد به، أي بتعمير القبور، أن تبنى على قبورهم القباب والقناطر، كما يفعل في المشاهد، لا بناء القبور نفسها، للنهي عنه.
35) Iman Abd al-Hameed al-Sherwani (d. 1301H):