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    Tuesday, 1 July 2014

    Concept of Ownership in Islamic Jurisprudence

    Discuss the concept of Ownership in Islam, explaining the modes of acquiring and losing the ownership?


    1. Introduction

    Some of the most important objects to which a man’s worldly desires relate and which reference to which men deal with one another are regarded in law as the subject of Mild (Sub) which is usually translated as ownership. He proper subject matter of milk is physical objects, but the word as used by the jurists covers a wider range of ideas than those included in merely proprietary rights. So long as this is borne in mind there is no harm in adopting the word “Ownership” as the nearest English equivalent of ‘milk’.

    2. Meaning of Milk

    Arabic term ‘Milk’ literally means ‘kingdom’ or “relation of owner with the thing owned”.

    3. Definition

    “Milk” or ownership has been defined by Muhammadan jurists as follows:

    (i) Jardri’sh-Shariat

    Ownership is “expression of the connection existing between a man and a thing which is under his absolute power and control to the exclusion and disposition by other.”

    (ii) Taftarani

    Ownership if “the power of exclusive control and disposition.”

    (iii) Al Mujalla

    The word ‘Milk’ is often used to denote a thing itself over which the right or power of the malik or owner extends.

    4. Terms Associated with Islamic Concept of Ownership

    (i) “Milk”

    This terms itself means “Ownership”. It also signifies a thing itself over which the right or power of the “malik” or owner extends.

    (ii) “Malik”

    The person who has exclusive power, control and dispositions is called the malik.

    (iii) “Mal”

    The thing over which the juristic conception ‘milk’ extends may be ‘mal’ that is physical object, or what is connected therewith, namely useful (manafat) either in the shape of produce of a physical object or of laborer or services of man, or muta’t is right to conjugated society, the last forms the subject of manakihat or matters relating to marriage and will be dealt with as a subject of family laws.

    5. Kinds of Rights Connected with Ownership

    Islamic jurisprudence recognizes the following rights connected with the ownership.
    a. Milk-u’r Raqba
    b. Milk-‘l-yad
    c. Milk-‘t-Tassarruf
    When ‘milk’ refers to mal or physical objects, it is divisible into ‘milk’ ur’raqba which may be a described or proprietary rights, ‘milku’l-yad’. That is , right of possession, and ‘milku’t-tasarruf, that is right of disposition, the first expresses the fact of the owner being specially identified with the thing owned, and is leads to rights of the last two categories and right of disposition has been legalized for the acquisition of right of control and possession.

    6. Curtailment of Rights Incidental to Ownership may suspend or curtailed

    Some of the rights incidental to property may be temporarily suspended or curtailed either by  the either by the act of the owner or by the law without affecting ownership.

    (i) Pledge

    Owner may pledge the thing or let it out and so long as he does not pay off the debt or the lease does not expire he is not entitled to possession though he is still the owner.

    (ii) Minor and Lunatic

    A minor and a lunatic are to allowed to have possession of their property until their disability is ceased, nor have they any power of alienation.

    (iii) Slave’s Life

    The law absolutely forbids the destruction of a salve’s life and also puts a limitation on the right, to destroy other kinds of living property, such as cattle. 

    (iv) Suspension of Rights to Destroy

    Sometimes the power of the owner to destroy his property may be suspended or curtailed having regard to the rights of others. For instance, if he has pledged a thing he cannot destroy it before paying his creditor.

    (v) Sole and Joint Ownership

    Ownership may be sole or joint. When  property is owned by two or more persons in undivided shares it is described as Shirkatu’l-milk. Each of the co-owners has a right to his share in every portion of his property, the Muhammadan Law as a general rule does not recognize joint tenancy in the sense of the English Law. Each co-sharer is entitled to dispose of his share and on his death it depends to his heirs and does not pass to the survivors. From the very nature, however, or undivided property no individual co-owner can have exclusive possession of or dominion over the thing and there is thus a ‘confusion of rights’ or ‘musha’. This is as we shall see considerably affected a co-owner’s powers of disposition over it, particularly when the intended disposition is of a voluntary nature.

    7. Modes of Acquisition of Ownership

    Every human being has a right as inherent to his status to make such use of his physical and mental faculties as he chooses, provided he does not interfere with similar liberty of others. It is by the exercise of these inherent rights and obligations connected with property are mostly acquired, transferred or extinguished.
    a. Ihraz or original acquisition
    b. Naql or transfer
    c. Khalf or succession

    (i) Original Acquisition

    It is securing or taking possession of things not already owned by another. Such physical objects as are intended for common use and have not already been appropriated by someone may be secured as property. The nature of securing by means of which res nullins is converted into property depends upon character of the thing.
    (a) Illustration
    Trees growing on mountains are regarded a res nullins. If a person cuts such a tree or has it cut by his servants or by employing laborers, he will be deemed to have done enough to secure it as his property
    (b) Illustration
    Grass is also secured in some way as trees, water is secured by separating it from the source of its supply as by collecting rain water in a jar or a reservoir. But suppose a man digs a well or a tank and collects water therein from the underground current, such water cannot be said to be fully secured as it is not isolated from the source of its supply.
    (c) Illustration
    Waste land, that is land which is not the property of any one, nor forms part of the pasture or forest belonging to a village, can be secured by a man as his private property if he revives it with the sanction of the head of the state. Land is said to be revived if it is actually brought under cultivation or prepared for the purpose as by irrigation or by protecting it with a boundary wall or fence. 

    (ii) Prescription

    According to the strict theory of Muhammadan Law a thing the belongs to another cannot be acquired by mere possession however long, in other words there can be no acquisition of property by prescription. But the same result has to a great extent been achieved indirectly in modern time. By the lawyers of turkey and Egypt recognizing the power of the Sultan to forbid the Qazi to hear suits instituted after the head of the state who appoints a Qazi may limit his jurisdiction of the court suits which have been instituted after a lapse of certain time. Though property cannot, according to the original theory, be acquired by mere prescription the law permits acquisition of rights connected with property in the nature of easements by prescription.
    Illustration
    A right of way over another’s right to discharge rain water and a right to a certain amount of privacy for females. 

    (iii) Khalf or Succession

    This is a mode of acquisition which belongs to the department of family law. The property of a deceased is divided among his heirs according to the shares specified in The Holy Quran

    (iv) Naql or Transfer

    The most important and frequent mode of acquisition of ownership is transfer by an act of the person having the ownership to another person. Usually, such transfer is affected by means of a contract, which as a technical term has a wider significance in the Muhammadan Law than in the English Law. How a contract is made has been discussed under a separate chapter. However, contracts, in Muhammadan Law, having regard to their principal features may be classified as under:
    1. Alienation of property; for exchange namely sale.
    2. Without exchange, namely , hiba or simple gift.
    3. By way of dedication, namely, waqf.
    4. To create succession, namely, bequest.

    Conclusion

    Ownership is true power of exclusive control and disposition. Therefore the owner of property has full power to use according to his will.
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    Item Reviewed: Concept of Ownership in Islamic Jurisprudence Rating: 5 Reviewed By: Usman Ali
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