2 Ownership (06-03)

8/2/2019 2 Ownership (06-03)

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Ownership• Property, Wealth, Fortune, Assets, Possession of wealth

Cash

Possession

Estate

Exercise of rights

over something

Product of labour _kisb

Chattels

Mulk mal

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Introduction

• the subject matter of ownership are called mal whichincludes

• tangible – real and

– personal

• intangible.

• some Muslim jurists opined that any mal is the subjectmatter of ownership others recognized the difference

between mal (property) and ownership. – mal is general

– ownership applies to tangible things only.

– Intangible property is called rights and interests, (haqq plural ishuquq) and this according to Hanafi scholars is not the subject of

ownership except the prevailing custom provides otherwise.

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Legality• Islam recognizes individual's right of ownership in all moveable as

well as immoveable property and places no restriction on any personas to the quantity of land or other property. Islam does not permit thestate to encroach upon anyone's rights and interests except for thebenefit of the general public or prevention of harm and damage toothers.

•

Individual is entitled to acquire private ownership of propertyirrespective of being movable or immovable as long it is acquiredthrough legal means

• Islam calls upon and encourages men to acquire property lawfully,and

•

guarantees the liberty to deal in their properties through sale andpurchase, gift, and wills.

• The Shariah considered them the rights of men and protected them byprohibiting any type of transgression against such rights.

• Should there be any type of transgression, the Shariah enacted the

penalties in terms of mandatory (hudud ) and discretionary (ta’zirat

)penalties

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Definitions of Private Ownership

•It is an exclusive assignment

– Magdisi

• A legal attribute of a thing or usufruct which enablesthe attributed person to use or exchange it forsomething – al-Qarafi.

– This may be applied to direct or intermediary.

• Legal power over something – Khu’i.

• Legal power over something in first instance – ibn

Human.• Legal possession of an item whereby the owner is

able to use or dispose it

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•

the element of ownership:• Exclusive assignment – interest

• Power

• Possession – mere possession does not amount to

ownership – ghasb/ta’adda• All the elements of the above definitions are generic

• They include things, usufruct, and rights arising therefrom.

• Yet the term usufruct in the definition is restrictive forownership also applies to some monetary rights that couldbe the subject of exchange between parties, except onewidens the concept of usufruct to rights which is not

commonly understood.

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• One may interpret it today as ‘the exclusive

relationship between a person and a thing whereby

he can appropriate the given object freely without

interference from another person. The owner is free

to utilize, use and dispose the object as he wishesprovided such a disposal and enjoyment is

permitted by the law. The owner has exclusive

power/control over the thing thereby excludingothers from using it, except and unless he

– Authorizes him; or

–

Appoint him as a guardian to his next of a kin and –

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•The definition is general as it includesand applies to power or control over

• the physical being of an object

• the usufruct / advantage of such a thing or

• any other right / interest therein e.g. the right

of easement and pre-emption

– Note: This definition is general includes

personal and proprietary rights

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The object of ownership

• The object of ownership may be

• Corporeal things which may be either – movable or

– immoveable,

• usufruct and benefit derived from corporeal things

• Rights attached or created due to the ownership with a thing.

• Corporal things include immovable or real estateespecially land, and movables called chattels.

• Ownership applies only to those things the benefit of which is recognized by shariah.

• Those items the benefits of which is prohibited by shariaor those which have no apparent benefit cannot be thesubject of ownership.

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Types of ownership• Ownership is studies in Islamic law by its holder, object,

characteristic and form or specification. Each of thesethree can be considered as a type of ownership.

• Based on titleholder

• private – the benefit of the property is exclusively assigned to an

individual or individuals• Exclusive to one and

• joint ownership: Specific

• Unspecific – Undivided portion – inspirable e.g half of the shop.

• Public – State ownership

– common ownership• the benefit of the property is assigned to a group of individuals as a community and class of

citizens where each person and individual as a member of that group and class of

individuals, not exclusive to one, can utilize the property• Examples: Naturally grown grass, Rivers, Fish and minerals, Waste land

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Ownership based on its object

• The object of ownership could be

– corporal things,

– usufructs and

– rights (rights are not the subject of ownership in hanafi school).

• From this perspective ownership is

– absolute/ complete and perfect

• The holder of the corpus with all its ensuing rights such as its usufruct, the

right of preemption, transfer and disposition

– Qualified, incomplete or and imperfect

• if the corpus is held with out such a rights then the ownership of the land is

incomplete

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The protection of ownership

• Private ownership is protected except

• When it clashes with public interest

– Mosque of Madina some did not want to sell their houses Umar

took it by force, and pay the compensation from the treasury of the Ka’ba

• Harms another person

– A person having a tree in the garden of another. The privacy of the owner of the garden threatened. After bargain the owner of the tree did not wish to sell it. The prophet took it by force.Another example is the right to pre-emption.

• Note: -The state may pay compensation, Other times maynot, depends on the value of the item taken.

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Indefeasibility of title

• The principle of indefeasibility of title in Islamiclaw would apply to

• land grants (iqta’),

• Reclaimed land (ihya)

• private land, being transferred and transmittedby

– agreement,

– mortgage, – gift and

– inheritance, and

•Waqf lands

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Islamic law: registration of titles

• All characteristics mentioned above exist due to the registration of title.

• Are such characteristics exclusive to Torren system or they can exist within othersystems too?

• The answer is: No

• land related systems, may recognise indefeasibility of title through other means. Two

important systems are on the point: – administrative (registration in land office) and

– judicial (registration in court).

• T. S. is administrative while Islamic and other systems are judicial.

• Proof ownership is written instrument in NLC and oral or written evidence in Islamiclaw

•Under NLC though the title is indefeasible nevertheless the claims of rights undercontract are the same as under Islamic law

indefeasibility

NLC Islamic Law

administrative Legal /judicial

Written instrument Written instrument Oral evidence

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The practice of early Shariah courts• In order to make deeds absolute there was [and still exists in some

countries] the practice of court which issue certificates, a copy of which would be given to the parties and a copy thereof would bekept in the court.

• Such certificates were voluntary; where the interested parties had toapply to the court for registration or register them after settlement of dispute.

• The certificates were witnessed by independent individuals in thecourt or they would send certifiers as well as the witnesses to the siteof the dispute to certify the settlement.

• jurists urged the Muslim rulers, in the early days, to keep suchdocuments and certificates in a safe and special place in courts,

properly indexed by names, month, and year, for easy access.• They prohibited courts and administrators to move them to another

place unless with due care.

• The certificates were always specifying the parties, their identities,the location and the subject matter, the witnesses and other details.

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Indefeasibility of certificates• As shown above, registration of property in Islam is a matter of court

directly or indirectly [through court appointed certifiers].• Such certificate is final but not absolute.

• A certificate can be challenged only when there is no copy in thecourt, or there is dispute about the legal capacity of the parties –

• ie. One of the parties is excessive spender (Safih), minor, or mad.

• A certificate is valid even if presented after 15 years (time limit ondisputes), but its validity may be challenged.

• The following general rules are ever applicable: – Certificate is final unless proved otherwise

– Possession is not proof of ownership

– Time is not bar to a claim of ownership but if

• possession could be considered a prima facie evidence of ownership after 15 yearsthere should not exist a written document to the contrary.

• written document may not be conclusive unless certified by the court and its copyis kept in the court.

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• Both the issue of certificates by courts and the

registration of dealings by land administrator areprocedural methods of recognition of title in land.

• While deeds and certificates are open to loss and

dispute, registered titles have similar fate.• the present form of Torrens System is much

organised which also needs further improvementthe same as any other system

• Neither system has a characteristic that would justify the replacement of one by the other, ratherthey may complement each other, for

improvement.

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Islamic law: absolute ownership• ownership under both systems have similarity.

•under Torrens Systems land is either – leased or

– given absolutely,

• under Islamic law, two types of lands are recognised i.e. – private and

– public.

• In case of private lands, the ownership is absolute as much as underNLC, with difference that under Islamic land law the owner mayfreeze the title which the state is unable to change unless replaced by

similar land in quality and value.• Similar to NLC, state grants in developed public lands, are grants of

proprietary rights (leasehold and usufructory), not of ownership,while in undeveloped lands state grants may be of absoluteownership (freehold) as agreed by majority of jurists, or usufractory

and leaseholds.

2 Ownership (06-03)

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