Ownership

Property, Wealth, Fortune, Assets, Possession of wealth

Cash

Chattels

Possession

Mulk mal

Product of labour _kisb

Estate

Exercise of rights over something

Introduction the subject matter of ownership are called mal which includes tangible
real and personal

intangible. some Muslim jurists opined that any mal is the subject matter 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 is huquq) and this according to Hanafi scholars is not the subject of ownership except the prevailing custom provides otherwise.

 Islam recognizes individual's right of ownership in all moveable as well as immoveable property and places no restriction on any person as to the quantity of land or other property. Islam does not permit the state to encroach upon anyone's rights and interests except for the benefit of the general public or prevention of harm and damage to others. Individual is entitled to acquire private ownership of property irrespective of being movable or immovable as long it is acquired through legal means Islam calls upon and encourages men to acquire property lawfully, and guarantees the liberty to deal in their properties through sale and purchase, gift, and wills. The Shariah considered them the rights of men and protected them by prohibiting 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 (tazirat) penalties

Legality

Definitions of Private Ownership

It is an exclusive assignment Magdisi A legal attribute of a thing or usufruct which enables the attributed person to use or exchange it for something al-Qarafi.
This may be applied to direct or intermediary.

Legal power over something Khui. Legal power over something in first instance ibn Human. Legal possession of an item whereby the owner is able to use or dispose it

the element of ownership: Exclusive assignment interest Power Possession mere possession does not amount to ownership ghasb/taadda All the elements of the above definitions are generic They include things, usufruct, and rights arising there from. Yet the term usufruct in the definition is restrictive for ownership also applies to some monetary rights that could be the subject of exchange between parties, except one widens the concept of usufruct to rights which is not commonly understood.

 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 wishes provided such a disposal and enjoyment is permitted by the law. The owner has exclusive power/control over the thing thereby excluding others from using it, except and unless he
Authorizes him; or Appoint him as a guardian to his next of a kin and

 The definition is general as it includes and 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

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 estate especially 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 sharia or those which have no apparent benefit cannot be the subject of ownership.

Types of ownership
Ownership is studies in Islamic law by its holder, object, characteristic and form or specification. Each of these three 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

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

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 Kaba

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 may not, depends on the value of the item taken.

Indefeasibility of title
The principle of indefeasibility of title in Islamic law would apply to land grants (iqta), Reclaimed land (ihya) private land, being transferred and transmitted by
agreement, mortgage, gift and inheritance, and

Waqf lands

Islamic law: registration of titles

indefeasibility
NLC
administrative
Written instrument

Islamic Law
Legal /judicial

Written instrument Oral evidence All characteristics mentioned above exist due to the registration of title. Are such characteristics exclusive to Torren system or they can exist within other systems 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 Islamic law Under NLC though the title is indefeasible nevertheless the claims of rights under contract are the same as under Islamic law

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 be kept in the court. Such certificates were voluntary; where the interested parties had to apply to the court for registration or register them after settlement of dispute. The certificates were witnessed by independent individuals in the court or they would send certifiers as well as the witnesses to the site of the dispute to certify the settlement. jurists urged the Muslim rulers, in the early days, to keep such documents 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.

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 the court, 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 on disputes), 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 years there should not exist a written document to the contrary. written document may not be conclusive unless certified by the court and its copy is kept in the court.

 Both the issue of certificates by courts and the registration of dealings by land administrator are procedural 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 improvement the same as any other system Neither system has a characteristic that would justify the replacement of one by the other, rather they may complement each other, for improvement.

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 under NLC, with difference that under Islamic land law the owner may freeze 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 absolute ownership (freehold) as agreed by majority of jurists, or usufractory and leaseholds.