Ownership In Islamic law

 

Concept of ownership in Islamic jurisprudence

1.Overview

The concept of ownership (milk) is very important as it relates to a man's worldly desires and with reference to which men deal with one another.

2. Definitions

A) According to Sadru'sh Shariat:

"It is the expression of the connection existing

between a man and a thing(shayun), which is under his absolute

power and control to the exclusion of control and

disposition by other".

 

B) "The relationship that exists between a person and a

thing that gives absolute control and right of disposal

over it to the exclusion of others."

 

C) “Ownership is the power of exclusive control and disposition”.

 

2) Malik (owner)

         “ The person who posses power of exclusive control and disposition over an object / thing, is called the Malik(owner) of that thing.

3) Essentials of ownership

A) Absolute Control

B) Right of disposition

C) Non-interference by others.

 

 

4) Types of Ownership:

We can classify ownership into the following:

A)  According to Participation:

This type of ownership is further divided into three types i.e. (a) sole ownership:  (b) co-ownership and (c)  communal ownership.

a)    Sole ownership:

A single person owns a thing having all the rights attached thereto.

 

b)   Co- ownership:

Two or more persons own the property jointly. This is known as sharikat al milk.

 

c)    Communal ownership:

A thing is owned by public at large in common, such ownership is termed as communal or public ownership.

 

 

B) Ownership of Corpus and Usufruct

Corpus means the body of a thing and usufruct is its benefits. Usually a person owns both, body and benefits, of a particular thing, however, there might be some circumstances in which he temporarily alienates the benefits to some other person making him owner of those for a limited time, such as renting of house, car etc. The right and powers attaching to ownership of usufruct are mostly defined by the contract between parties.

 

(C) Complete and Incomplete Ownership:

When a person posses all the incidents(essentials) of ownership I.e possession (yad), proprietary rights (raqba), and right of disposal (tasarruf), his ownership is complete, while in all other cases, it is incomplete.

 

D) Ownership of Rights:

Sometimes, a person firstly becomes owner of certain rights over things, which lead to his ownership over that thing in later point of time. These rights may be primary or incidental.

On the other hand, there are many circumstances in which a person owns only rights of a thing or his whole property comprises some rights. There is difference of opinion in such a case, as Hanafis do not consider pure rights as valid subject matter of mal, as in their view the subject matter of ownership must have body, in order to qualify as property. While, Hanbalis consider pure rights as valid subject matter to be termed as property.

 Concept of Mal:

Mal is a property which is the subject matter of ownership. It is a thing over which the right of ownership is exercised. The concept of Mal in Islamic law is very narrow and does not include things being illegal or forbidden for Muslims e.g wine, pork etc.

 

Mal includes;

A)  Things having a corpus(body) I.e physical objects such as land, property etc.

 

B)  Things connected with corpus e.g Usufruct or Manafah, in the shape of produce of a physical object or of labour and services of men.

 

 

C)  Pure Rights: These are also included in Mal

E.g 1) Right to conjugal society.

       2) Right to stipulate an option.

 

 

 

 

5) Classification of Mal:

 Mal may be classified as:

 

 

A)  Moveable and Immoveable:(Manqul and Ghair- Manqul)

Ø The characteristic of moveable property is that it can be removed from one place to another and can be destroyed which can rarely happen to immovable property.

Ø By immovable property, we primarily mean land and along with it all permanent fixtures such as buildings etc.

Land and buildings are called Aqar.

 

B)  Similars and Dissimilars: ( Mithli and Qimi)

Ø An article is said to belong to the class of similar (Mithli), if it’s substitute can be found by weight/measure/qualityetc.

If such articles are sold by weight or capacity, they are called similars  of weight or capacity.e.g gold, silver, grains etc.

Ø A thing belongs to the class of dissimilars , if the like of it is not available in the market or available with slight change like houses, animals etc.

 

C)  Determinate and Indeterminate:(Ayn and Dayn)

The chief determining test is whether, when a man is to get certain property from another who either borrowed it from him or took it by force, he is entitled to recover it in species or not; if he is, then it is called specific or determinate , and if he is not, it is called non-specific or indeterminate property.

D)  Marketable and Non-Marketable:

Ø Marketable things are those that can be converted into private property e.g property, money and other things coming under the definition of Mal.

Ø Non-Marketable things cannot be converted into private property e.g air, sunlight etc.

These things are not regarded as Mal.

 

6) Ownership: Modes of Acquisition

 Ownership of can be acquired by the following modes.

A)  By Original Acquisition (Ihraz):

It is the  securing or taking possession of things not

already owned by another. Such objects as are not intended for common use and have not already been appropriated by someone, may be secured as property e. g. trees growing on

mountains etc.

 

B)  By Transfer (Naql):

The most important and frequent made of acquisition 

of ownership is transfer, by an act of the person having

the ownership, to another person.

Such transfer usually comes into effect by means of a contract or Aqd. Which may be in the from of sale, gift etc. 

 

C)  By Succession (Khalf):

This mode of acquisition belongs to the department of

family law. When a person dies, all his property

whether moveable or immoveable, passes to his legal

heirs and they becomes owner by succession.

 

D)  By prescription:

Ø According to the strict theory of Muhammadan law, a thing that belongs  to another cannot be acquired by mere possession (I.e ownership cannot be acquired by prescription).

Ø However, in modern times the law permits acquisition of

    rights connected with property in the nature of

    easements by prescription. For example, a right to way

    over another's land can be acquired by prescription.

 

 

7) Modes of losing ownership:

Following are the different modes of losing ownership.

 

1) By transfer( Naql):

Ownership may be lost by an act transfer. The original

owner may transfer his thing/property  to another by way of sale, gift,  waqf etc. So in this way the  ownership of the original owner will be extinguished and will passed to the new owner.

     

2) By extinction :

When a thing/object/property of an owner is destroyed(i.e the object no more exist) , then the ownership of that owner also comes to an end.

 

3) By Death Of Owner:

When the  owner of a thing/object/property dies, then his ownership over that thing also comes to an end. The ownership transfers  to his legal heirs after his death.

 

4) By operation of law

  Operation of law may also put an end to ownership.

 E.g Auction.

 

 

8) Things which cannot be turned into property:

  It includes:

A)   Light and Air:

No one can exclude another from the enjoyment of light and air, though their unrestricted access to a human dwelling, is allowed to be curtailed to some extent by the necessities of social life.

 

B)   Fire:

It means that light and warmth of fire cannot be exclusively appropriated. For example; if a man lights a fire in a desert, he cannot prevent other people from utilizing it’s warmth and heat, though they cannot carry away the cinders.

 

C)  Grass:

If there is a grass growing wild on a man's land, and the public are not kept off by a boundary wall, fence etc. No action can be taken against a person for cutting it.

But if the grass has been cultivated or cut, it becomes property.

 

D)  Water:

Water is common to all men, as long as, it is not separated or cut off from it’s source of supply, such as by collection in a jar.

If the collection is such that the water still remains connected with it’s source as in a well or tank, it is common property , though to a very limited extent.

Any member of a public has a right to use the water of the sea, river or of a small stream provided it is not private property for the purposes of navigation, cultivation and manufacture such as driving mill.

 

 

E)  Common Pasturage and Forest:

The land which is not already the property of anyone and is left as pasturage and forest for the common use of the residents of the locality. Such land is public property and cannot be turned into private property.

 

F)   Public Roads:

A public road is the common property of the people together with the space above it, so that no individual is permitted to obstruct it to the detriment of others.

 

 

 

G)  Institutions Dedicated To The Public:

Mosques, schools, inns, hospitals and similar institutions are dedicated to public and cannot be turned into private property.

 

Conclusion:

  Ownership is the relationship of a man with a thing which gives him absolute control and right of disposal over that thing. The scope of property for a Muslim is somewhat narrow, as many things which are valid for non-muslims, cannot be owned by a Muslim. Ownership is a combination of different rights over a thing and an owner can transfer some of them to anybody for a limited period. A person who possess a thing enjoys almost all the benefits attached to that thing.

 

 

 THE END