Chapter VIII - Ownership Kinds
And Divisions Of Property Ownership
Termed milkkiya, in Arabic, is of two kinds:
- Things in common or joint use, such as public roads, gardens, water, pasture, light and fire lighted in a desert to which any man has a right of warming himself.
- Private concerns, limited to the ownership of an individual. These may be classified under the following headings:
(a) Milkul-raqaba, in Arabic, which literally means “possession of the neck,” or right of the proprietor to a thing.
(b) Milkul-yadd or right of being in possession .
(c) Milkul-tasarruf or right of disposition.
Property is divided into:
- Movable property, which is subdivided into the following:
(a) That which is measured, such as rice, etc.
(b) That which is weighed, such as silver, etc.
(c) That which is measured by a linear measure, such as cloth, etc.
(d) That which may be counted, such as animals, etc.
(e) Articles of furniture and miscellaneous things.
- Immovable property, such as buildings, land. etc..
A man may not be the owner of a property, but may have a share in its income, through hard labour, or skill, in which case, he is not concerned with the loss. But a full owner or a member of a company is affected both in the loss and the profit. As part owners in property, each part-owner-is co-owner and bears the responsibility of sharing in the responsibility of maintaining it, repairing it, etc.. At the same time, each co-owner enjoys the right of demanding his or her share and resolving to separate his or her own share of it from the joint ownership.
There are partial or temporary right, such as the right of murur or passing through another’s land, and the right of shufe or pre-emption, which means that a co-partner in a certain property must be given preference in the matter of its purchase before the property is sought to be sold to a stranger, and next to him to a neighbour (if the property is immovable, such as a building or land). If there are more partners than one, the preference is to be given according to the proportion of the share, or of the need, as between the parties, or on other considerations. But if the sharer or sharers do not assert their claim at the proper time, their claim lapses. Therefore, when the judge announces the sale of such property, he fixes a timer for the exercise of the right. Waste land belonging to the State may become private property by cultivation after permission from the authorities concerned. Land belonging to an individual cannot, however, be acquired through cultivation or effecting other improvements on it. The Islamic Law prevents an individual from becoming a nuisance or a source of annoyance to others in exercising one’s own right of ownership. For instance, a man may not build his house so close to his neighbour’s as to prevent the access of light and air to them; nor can he discharge rain or waste water on his neighbour’s property, etc.
Possession is transferred by ‘aqd, which means a “tie,’ by the original possessor proposing its transfer on certain terms or unconditionally and the receiver accepting the same. This is called – in the law–ijab(proposal), and qabul (acceptance). Offers and acceptance of transfers of this kind are classified as follows:
- Hiba or gift – a transfer of property without any exchange. This is effected by a decree of the court (judge).
- Ba-y’ or sale, which is a transfer of property in exchange of something else. This may be effected by: (a) payment of cash; (b) barter; (c) banking, in which the transaction is cash for cash; (d) sale by payment in advance, so that the goods sought to be bought may be delivered on a future date; and (e) sale in advance, which occurs when goods are made only on receiving an order, its value being paid, in whole or in part, in advance.
- Bequest of property which takes effect after the death of its owner. The testator has the full right of bequest in one-third of his or her property for private and charitable purposes, after paying the debts (if any) and funeral expenses incurred, the remaining two-thirds being distributed according to the law among his heirs. If he or she desires to bequest more than one-third of his or her property for charitable purposes, he or she must take the consent of the future heirs. A testator must not be insolvent at the time he or she bequeathes the property in question or in debt to an extent exceeding the value of the property. He or she must be adult at the time the bequest is made. The bequest can be made in writing or verbally in the presence of two males or one male and two female witnesses. An executor after accepting the responsibility cannot decline to discharge it. He must administer the property in case the heirs are minors and distribute the property among them according to the will on their attaining majority. He may sell, pledge, or let the land or house for absolute advantage or for meeting a necessity. But he cannot trade with it unless specifically permitted by the will. A bequest made must be accepted by the legatee. It may be in favour of one or more persons of his own family or to outsiders, who may be Muslims or non-Muslims.
Duties of an Executor. –
Besides generally administering the property, the duties of an executor are:
(a) Paying the funeral expenses.
(b) Discharging all debts due, if any.
(c) Collecting all dues and debts owing to the testator.
(d) Acting according to the intention of the testator.
A bequest may be revoked during the lifetime of the testator, and all changes he desires may be effected by him in regard to it.
- Waqf or endowments. Waqf, literally means suspension or standing. It is a word used in the sense of transferring an individual’s property and its income for some charitable purpose. Endowments among Muslims are made for the erection and maintenance of the following:
(c) Free schools.
(d) Benefit of the poor.
(e) Maintaining reservoirs, waterworks, etc.
(f) Carrying out caravans services, hostels, cemeteries.
(g) Supporting a family (whole or poorer members).
The idea of public charity of this kind began as early as the time of the Prophet; but it developed and took a definite and legal form about the end of the first or the beginning of the second century of the Hijra. Its motive from the very start was the promotion of charity and encouragement of learning, particularly religious learning. Accordingly, the Islamic Law forbids such endowments for purposes opposed to Islamic teachings.
A non-Muslim is permitted to make endowments under the same conditions as a Muslim can. The donor of waqf must be in full possession of the property. He must be ‘aqil, a possessor of understanding, i.e. sane; baligh, of age; hurr, free, and of good health at the time he makes the endowment. He must not be in debt for an amount affecting too much the value of his property. The object of the endowment must be of a permanent nature and the property must yield some profit, i.e. it must be productive or beneficial in some other way, as for instance, endowment of a library by presenting number of books, which though they may not yield a income, may be studied for a very long time.
Endowments may take the form of immovable property, such as land, buildings, etc., but certain kinds of movable property may also be accepted, such as animals for the milk they may yield.
Division of Waqfs
Waqfs may be divided into:
- Khayri, i.e. charitable such as for the benefit of mosques, hospitals, etc.
- Ahli, that is intended to support a family in which the object aimed at is the perpetuation of a family in good circumstances, by affording it the support of an income of an estate.
A waqf needs not necessarily be executed in writing, but in case it is not writing the donor must expressly declare it before witnesses, i.e. state specifically before them:
(a) His intention to make the endowment.
(b) Description of the nature of the endowment, its income, etc.
(c) He must provide for its coming into force immediately the declaration is made.
A waqf can be made of one-third part of the donor’s property, the remaining two-thirds being left to his heirs, but the donor may increase the quantity by making a gift during his lifetime. Once a waqf is properly made and comes into force, it cannot be revoked even by the donor.
In case a mosque is erected, it becomes public property as soon as any man makes his prayer in it. A Waqf is administered, according to the terms of its endowment, by one or more trustees. A single person supervising the administration is called Nazir, i.e. manager or administrator, he is paid for his services from the income of the estate to the extent of one tenth of the net income. The founder himself can become the Nazir during his lifetime, if he so provided, and be succeeded by one of his family. But in case another is appointed under the terms of the endowment, the founder or his descendants cannot interfere with the management, so long as it is administered according to the terms and conditions laid down in the endowment. If a Nazir fails to carry out his duties honestly, or if he is proved incompetent, it is left to the magistrate (qadi) to dismiss him and to appoint a competent man. If an endowment is not utilized for the intended purpose, it becomes the property of the donor of his heirs.
The endowed property must be free from the claim of creditors. A man cannot make an endowment of his property in favour or of his children if he in heavy debt, and if his object is to escape payment of his lawful debts.