Académique Documents
Professionnel Documents
Culture Documents
By
Amana Mohammed Yusuf
Department of International Law & Jurisprudence
Faculty of Law
Bayero University Kano
+2348033340192
myamana.ilj@buk.edu.ng
CLASSIFICATION OF PROPERTY
Islamic jurist have classified property in terms of their basic needs,
permissibility and non permissibility, in relation to ownership and
transfer of possession via any of the known means of barter.
The Muslim jurist therefore classified property into 3 broad heads.
1) Mutaqwam (valuable) and Ghayr Mutaqawam (in-valuable)
2) Aqar (immoveable) and Manqul (movable )
3) Mithli (homogenous, generic or similar in nature) and Qimi
(heterogeneous, not specific or not similar in nature)
Mutaqwam
Loosely it can be translated to mean goods with proper authority,
having economic and monetary value.
Literally, it means goods with proper standing and legally
recognized and permitted under the Sharia.
Mal-Mutaqawam enjoys protection in Islam as evidence in several
verses of the Holy Qur‟an.
Quran 2:188
“Do not usurp one another‟s property by unjust means, nor
bribe with it the judges in that you may knowingly and
wrongfully deprive other of a part of their possessions.”
Quran 4:2
Give orphans the property which belongs to them. Do not
exchange their valuable for worthless things or devour their
possessions adding them to yours; for this would surely be
a great sin.
Quran 4:29
Believers do not consume your wealth (property) among
your selves illegally, but rather trade with it by mutual
consent.
Hence, the owner of a mal-mutaqawam which is destroyed is
entitled to compensation.
Equally where a mal-mutaqawam is stolen it would attract a hadd
punishment for the person who stole.
The attributes of mal-mutaqawam are:
1) It is valuable
2) It a permitted subject of legal transaction in Islam
3) It is capable of being compensated for if damaged.
4) The theft of it attracts hadd punishment
5) It enjoys protection in Islam.
Ghayr Mutaqawam
Its definition is the converse mal-mutaqawam. It is goods without
proper authority, having no economic and monetary value in the
eye of Islam. It is equally of no standing and do not enjoy any
protection in Islam.
Therefore, mal ghayr mutaqawam are those classes of goods or
properties which are prohibited in Islam as stated in some verses of
the Holy Qur‟an.
Quran 5:3
You are forbidden to eat that which dies of
itself, blood and flesh of swine … flesh of
strangled animals and those beaten or gored to
death.
Fore example liquor is not permitted (haram) to Muslims. So a
Muslim is not authorized to posses it. For a Muslim, liquor has no
economic or monetary value and if a bottle of liquor available in a
Muslims belonging is broken, their will not be any compensation
payable by the person who broke same because the commodity
liquor is ghayr mutaqawam.
Therefore, there cannot be any lawful business transaction of mal-
ghayr mutaqawam as it would be illegal and void ab-initio.
In essence mal-Ghayr mutaqawam lacks all the basic attribute of
mal-mutaqawam.
According the Maliki and Hanafi jurist mal-ghayr mutaqawam can
be used by non Muslim.
Thus in the example given above, if the broken liquor was the
belonging of a non Muslim, compensation will be payable even if it
was a Muslim that broke same.
However Hanbali and Shafii differs to the view stated above,
because according to them, mal-ghayr mutaqawam is not
permissible in an Islamic state, thus the possession of same by a
non Muslim would amount to a breach of the principle of Sharia by
a non Muslim living in an Islamic state.
Legal consequences of the classification
The legal consequences of the classification is that, it distinguishes
between
1) Goods or properties that are valuable and those that is not
valuable.
2) Property protected by the Sharia and those not protected by
the Sharia.
3) Those subject of legal transaction and not subject of legal
transaction
4) Those capable of being compensated for if destroyed and
otherwise
5) Those in respect of which punishment for hadd can be
imposed if stolen and otherwise.
AQAR AND MANQUL
Aqar:
Aqar is defined by the jurist as properties that are fixed or static in
nature. These classes of property by their nature are immoveable.
Example of which is land.
Manqul:
These are properties that are not fixed or static. They are capable of
being moved form one place to anther because of their non
permanent nature. Examples are animals and merchandise.
It is the overwhelming view of Hanafi, Shafii and Hanbali that a
property could attain the form of both Aqar and Manqul.
They argued that a property though manqul could become aqar if it
is affixed to the ground in a particular position. An example could
be a heavy duty generator affixed to the ground for it to operate.
This same generator can be uprooted and moved to another
location.
Maliki jurist however differ in their opinion for according to them
any object attached to land cannot successfully be moved with out
substantial change in its form. Thus once such object is affixed to
the ground, it becomes aqar.
LEGAL CONSEQUENCES OF THE CLASSIFICATION
1) Right of pre-emption (shaf‟ah) is available only in relation to
aqar and not in manqul
2) Right of easement (Haq al-irtifaq) exist only in relation to aqar
3) Aqar need not be in physical possession of the owner before
same can be sold. The same cannot be said of manqul whose
physical possession is a pre-condition.
4) The aqar of a bankrupt person cannot be sold/auctioned
unless the manqul has been exhausted. The same goes for a
judgment debtor.
Mithli: this refers to goods/items whose similar kinds are generally
available in the market. It also connotes properties which can be
measured by weight, volume, length or number of homogenous
units.
One unique attribute of Mithli is that if it perishes, it can be
replaced by an equal quantity of a similar property/goods/item
without any difference in the constituting units. Example of this
properties includes but not limited to eggs, money, rice, wheat,
corn, barley, etc. thus one piece of egg available in shop A is Akin to
another piece of egg available in shop B.
In any barter system generic goods shall have to be transacted
without any different of quality or weight as the case may be. Any
excess in quantity and weight will be riba (interest). However, non
specific goods can be bartered with unequal quantities. If a person
borrows 3 eggs from his neigbour, he will have to return 3 eggs in
lieu of that. One cannot take the plea that the eggs borrowed were
bigger, so the eggs refunded should be more in number.
The difference in size if any shall be ignored. Refunding of 2 eggs in
lieu of 3 will be unjust and demanding of more eggs above the
number borrowed will be riba which is forbidden in Islam.
Another attribute of mithli is the availability of same kind of
property in the market.
Muslim jurist are unanimous in their views that Mithli can be made
a subject of a loan contract because of the possibility of finding the
equivalent at the time of repayment.
Qimi: these are properties the like of which can not be found in the
market or even of it is found, dissimilarities would still exist. Thus
Qimi includes all those properties which cannot be exchanged by
weight or measurement. They include but not limited to land,
houses, animal, trees, etc.
Consider the case of an animal, one goat owned by one person is
not like another goat with another person. This is because the 2
goats may attract different price. Equally, every house may be
unique with regard to its construction or locality and there may
justifiable difference in their respective values.
LEGAL CONSEQUENCES
1. In loans transaction for mithli there is no difficulty in
repayment
2. In the event of destruction of mithli where an action is
maintained in tort, it is capable of being refunded.
STATE OWNERSHIP
State here is in the context of an Islamic state. Any land that
has no owner belongs to the Islamic state. Implicit in this
principle on which all the jurist are in agreement, is the
hierarchy/categorization of ownership beginning with Allah,
then His prophet (PBUH), then the leader of the state.
The authority of the Islamic state lies in the Imam. Under the
Imam, comes the institution referred to as the Baytul mal”
which is the public treasury as well as the authority over
revenue generating policies.
It is worthy to note that, the classification of ownership into
community ownership and state ownership has been argued to
be for the sake of convenience as only a line separates the 2 if
any at all. This is because; the community is part of the state.
And common to the two is the fact that proprietary/ownership
rights are vested in the state/community. It is the right of use
that is common to all.
CONCEPT OF LAND
Land in Arabic means Al-ard. It is also connotes earth. The
use of the word al-ard is common in several verses of the Holy
Qur‟an. In those verses, the creation of land is attributed to
Allah, it sole ownership is also shown to be vested in Allah and
its entrustment as a property into man for the benefit of all
has also been shown to be guaranteed by the Qur‟an. See the
following verses of the Holy Qur‟an.
All that is in heavens and on the earth belong to Allah
4:126 & 134
To him belongs whatever is in the heavens and earth.
16:52
His is the kingdom of the heavens and the earth and all
that lies between them 43:85
The earth belong to Allah, He gives to his servant as the
pleases 7:128
And he it is who made you to inherit the earth 6:165.
Then we made you vicegerents in the land after them to
see how you would act 10:14
To him is due the primal origin of the heavens and earth.
. 2:117
Do you see what he has spent since he crated the
heavens and the earth 14:32 and 13:3-4.
It is the unanimous views of the jurist that land is an
immoveable property.
In islam, land has two basic components i.e land itself which
is propriety in nature. And manfa‟ah, which is the use and
benefit derivable from it.
Division of Land:
As for as the division of land is concerned under the Sharia
the Muslim jurist have classified land based on the mode of
acquisition. Land therefore has be classified or divided into
1. Unoccupied land
2. Occupied land
3. State land.
1. UNOCCUPIED LAND
As the name suggest, it is a land without an owner. Muslim
jurists have classified unoccupied land into 2
1. Mawat land (virgin or barren land)
2. Waqf land (Abandoned land)
Mawat Land: It is derived from the concept ihya al-mawat
which literally means revival or bringing to life. It is a principle
of Islamic law which recognized acquisition of land by the state
or individual through revival, rehabilitation or bringing back to
life a dead land. It is a known medium of land acquisition that
was practiced and prevalent during the time of the Holy
Prophet (PBUH) and continued up till the time calipha Umar
(who was well known in Islamic history for his various land
reform programs and up to the present day).
Mawat land actually refer to land that is left fallow, barren and
uncultivated. It has been neglected and with lapse of time
become dead or waste land. It becomes dry and not fit for
yielding any crops or vegetation in that state. Mawat land has
also been held by the jurist to include flooded areas.
In other words, mawat land is an uncultivated waste land that
has no owner. The ownership of which it has been maintained
is vested in the state and acquisition by an individual through
rehabilitation either with or without the permission of the
state, by cultivation, occupation, or construction is permitted
pursuant to the requirements laid down in the Sharia.
Jurists are unanimous on the definition of Mawat land, their
only point of disagreement is on the location of the land.
Maliki, shafii and Hanbali jurist define Mawat land as lands
which are not the property of anyone, the location of which are
far from the distant part of the village or town, that the sound
of a person who has a loud voice cannot be heard from the
houses which are in the extreme limit of the town or village.
Hanafi jurist on the other hand agreed with them on the
definition of mawat land as lands which are not the property
of anyone but gave important emphasis on the location of
mawat land and insist that it should be far away from any
human settlements to be considered mawat land.
From the foregoing definitions, it is clear that mawat land has
no owner, is uncultivated and has been left barren, fallow and
neglected and with passage of time turned to become a waste
land.
Jurists not withstanding the definition of mawat land advance
by the schools of thought, as being a territory belonging to
nobody has categorized mawat land into 2 distinct categories
1. LAND NOT OWNED BY ANY BODY: The jurists are
unanimous in their view that land which has never been
owned by any body can be acquired through the process
of rehabilitation, cultivation and occupation.
WAQF LAND:
These are land acquired through conquest or abandoned by people
out of fear of conquest or for other reasons.
Under the waqf institution, a land declared as waqf land becomes
the common property of the whole Muslim community under the
headship of the Imam or an Emir. such land is held in trust for the
common benefit all.
Jurists appear to be in disagreement as to whether such land
should be treated as unoccupied land or not.
Shafii, Hanbali and Hanafi, are of the view that it cannot be
treated as unoccupied land where ownership of same can be traced
to a well known community or tribes. The proprietary right remains
in those people, though abandoned, by them, the land will be held
as waqf land until the people come back to reclaim same. The
rationale for their views is that such people may come back to
embrace Islam and if the land is treated as unoccupied, individual
acquisition of same will deprive them land for settlement and
sustenance when they choose to come back.
Hanbali and Shafii further maintained the view that the land
cannot be treated as unoccupied even if the people who abandoned
the land are unknown. They maintained that the land does not
allow individual ownership; it remains a waqf land held in trust for
the benefit of all.
Maliki jurists on the other treat such land as unoccupied capable
of individual ownership, unless expressly declare by the
Imam/Emir as waqf land in which case such land is held in trust
for the benefit of all. The first leg of their view is based on the
prophetic tradition.
He how revives a barren land owns its
Maliki and Hanafi on the other hand further maintained that
where the people who abandoned the land are unknown, it is
treated as unoccupied, capable of being revived by any body.
The conflicting views noted above is based on the perceived
interpretation of the provision of Sura 59:7 by the jurists.
OCCUPIED LAND
These are lands of the territories whose people or inhabitants are
Muslims or dhimi (non Muslim in an Islamic state). These lands
are considered automatically owned by the Muslims or dhimi. The
Muslim jurists agreed unanimously that its ownership remains
intact in the Muslims and the dhimi. They further agreed that
nobody can take it away from them. The owners of the lands are
vested with the power of sale and the land is capable of being
inherited upon the death of the owners. The jurists support their
views with the prophetic tradition that says:
A nation which embraces Islam secures its life and property.
The sign of sanctity of the right over occupied land against
infringement by others and abuse by the state is guaranteed by the
Qur‟an and prophetic traditions.
Surah An Nisaa 4:21
O you who believe! Eat not up your property among
yourself in vanities but let there be amongst you traffic
and trade by mutual goodwill
Sura Al Baqarah 2:118
And do not eat up your property among yourselves
in vanities, nor use it is bait for the judges with
intent that you may eat up wrongly and knowing
other people property
Prophetic Traditions
It was narrated by Muaz bn Jabal that the Prophet said:
No person’s property is lawful to be taken except by his
consent.
In another tradition narrated by Said bn Zaid, the Prophet was
reported to have said:
That if anyone takes a span of land unjustly, its extent taken
from seven earths will be tied around his neck on the day of
Resurrection. If he took span of land without his right he
would be made to wear around his neck seven earths on the
day of resurrection.
Thus, the Quran and Hadith clearly prohibit encroachment upon
land lawfully held by another save through legal means to wit.
Lawful trade, mutual consent and inheritance etc.
Question: can an Islamic state compulsorily acquire an occupied
land from its owner without his consent and without adequate
payment of compensation?
The Holy Prophet (PBUH) was reported to have acquired land of
some of the people of Madinah for the construction of mosques
with their consent and he paid compensation to the owners in
accordance with the prevailing price although the owners did not
demand any price. Similar acquisition of land and payment of
compensation was undertaken by Caliph supra.
Muslim jurist are therefore unanimous in their view that a land
occupied by a subject in an Islamic state cannot be acquired
unlawfully without the payment of compensation.
It should be noted that the amount of compensation envisage in
islam covers not only the loss of ownership of the land but also to
indemnify the owner of the expenses incurred on developments on
the land and the loss of income arising from the loss of use of the
land.
Muslim jurists are unanimous is their views that occupation that
grant title over the land must be active and constructive. Physical
holding in the form of farming on land, construction of building
and erection of other structures is required.
In relation to annexed land, jurist maintained that annexed land
attached to a village or town though treated as occupied land
belongs to the state and no individual can own it. However, they
argued that annexed land detached from a village or town may be
privately own by a person who put to use part of it continuously.
They however differ as to the distance of the land from the village
or town.
Shaffi School put it at a day distance to and from the village to
fetch firewood.
Hanafi School put is at 300 to 400 feet from the village.
Maliki and Hanbali leaves the distance to the custom of the people
STATE LAND
As the name implies, it is land owned by the state and held in trust
by the al-amir (leader) or the iman for the common benefit of the
Muslims.
This land is sometimes referred to as Amiriyah land. Although the
use or benefit right of such land may, in conformity with state
regulations be acquired by an individual or group, the proprietary
right rest with the state. Other lands classified as state lands are
1. Himma Land: It is often referred to as grazing reserve. Its
history date back pre-islamic era and with the coming of
islam it was retained and transformed into one of the mode of
acquisition of land. It is acquired upon the proclamation of a
given area as public reserve by the imam. Once that it done,
such land come under the institution of the state and held in
trust for the common use of all.
2. Sulh Land: it is land acquired through compromise or treaty.
although the proprietary right reverts to the Islamic state, the
original owners continue to use the land upon the payment
kharaj (tax)
3. Conquered agricultural land: It is also referred to as fay land
land. The word is derived from afa‟a which occurred in verses
6-7 of sura 59 (Al-Hashr). These verses reinforce the concept
of common ownership over conquered land. It thus falls under
the institution of baytul mal.
OWNERSHIP OF LAND
Ownership of lands in an Islamic state has been classified into 4
1. Private ownership of land
2. Communal ownership of land
3. State ownership of land
4. Co-ownership
PRIVATE OWNERSHIP
Every individual, man and woman, Muslim and non Muslim are
entitled under the sharing law to the ownership, possession,
enjoyment and transfer of land. Private ownership of and as
enjoined by the Holy Qur‟an and prophetic tradition must be
respected and safeguarded by fellowmen and the state. In deed the
Quran and prophet tradition provides guide line for its acquisition,
protection and proper utilization.
Private ownership of land is acquired when an individual revives a
virgin, or barren or unoccupied land. This form of land ownership
is justified by the prophetic tradition „he who revives a barren
land owns it’. And the also the tradition „whosoever cultivates
and inhabit a land which is nobody’s shall have the best right
to it’.
The prescribed nature of revival or rehabilitation to be carried out
on the occupied land is in accordance with the prevailing condition
and nature of the land itself.
If the land falls under the category of building, the nature of work
to be undertaken naturally relates to that purpose. i.e the
construction of building, dwelling houses and other structures. If it
falls under agriculture, then agricultural work is to be carried out
there such as clearing of the land, irrigation works etc.
Shafii School pointed out that planting of fruit trees is not a
condition of revival unless it is classified as orchard land.
Maliki School on the other hand view revival or rehabilitation to
include cultivation of the land through irrigation works by creating
water channels, planting trees, digging of wells, ploughing the land
and construction works such as building of dwelling house.
The Muslim jurists however are divided on the efficacy of
ownership based on Tahjir.
Tahjir denotes preliminary measures or works towards reviving of
unoccupied land. It includes such acts as making of boundary
walls with stones or wooden stakes, the clearing or burning of
grass, enclosing the land and other related activities.
Shafii School believes that Tahjir does not create any right of
ownership. According them, the steps towards acquisition only
begins with Tahjir and will bloom to ownership if rehabilitation
work has been completed within the specified period of three (3)
years.
Hanafi School on the hand believes that Tahjir serves as a notice
to other. Therefore, it would serve as a point of reference for
claiming priority if conflicting claim of ownership arise.
Maliki and Hanbali on the other hand hold the views that Tahjir
creates ownership but it ceases or extinguish if the cultivator fails
rehabilitates the land completely within the period of 3 years and
abandons it.
The principle of acquisition of land through revival was given
judicial affirmation in the case of Alhaji Ishaku Vs Hadejia N.A
Reported in Sharia law Report by Yahaya Mahmood p.1 in that
case on Abbas first cleared a forest land with the permission of the
village head father who was the then Bulama (ward head). After
cultivating the land (two in numbered, he left it and went to live in
another village. The appellant Ishaku claimed possession of the
land left behind by his brother and continued to farm on it. The
ward head did not agree and sought to take over the land. At the
Emirs court judgment was entered in favour of the Bulama and the
appellant and his brother were asked to leave the land for the ward
head. On appeal the decision of the trial court was set aside and
the court of appeal held as followers:
According to Islamic law, if a person brings into
cultivation any uncultivated land, that place belongs to
him and even an Emir cannot take it from him. A forest
belongs to no one, therefore any person who improves it
has the full control over it and no one can challenge that
authority even if he is a ruler.
Private ownership can also be acquired through Al-iqta (grant,
assignment, allotment or alienation by the state).
The Prophet (PBUH) as the head of the Islamic state and his
immediate successors known in history the caliphs made grants of
land to people. The Prophet (PBUH) was reported to have granted
Hadrat Zubair a tract of land in Khyber which contained date-
palms and other trees. The Prophet said to Zubair Race your
horse and the point where it stops shall be the boundary of
your estate. Zubair raced his horse and when it stopped at a spot,
he cast forward his lash. The Holy Prophet (PUBH) then said “All
right, give him the land up to where his lash has fallen”.
Private ownership through state grant can take either of the
following form:
1. IQTA TAMLI: this is a concession of ownership where both
proprietary right and manfaah right is vested on the person to
whom the grant is made. It automatically becomes his private
estate, thereby conferring on him the power of sale, lease or
any other use right on the land.
2. IQTA ISTIQLAL: Here only the right of exploitation or use
right is granted. Thus only the right to the benefit from the
land is given without the right of ownership or sale. Under
this form of grant, tax or rent are often imposed.
3. IQTA IRFAQ: it is a grant of a temporary nature and for a
specified purpose. Under this grant, the length and conditions
of use are for the state to determine from time to time.
Examples are market shops and road side stores.
COMMUNAL OWNERSHIP:
Communal ownership of land contemplate land, the ownership of
which is vested in the community as a whole and which is held in
trust by the Imam for the common benefit of the people. The
justification of this form of ownership of land is traced to the
prophetic tradition that Grass, water and fire is the common
property of all people.
STATE OWNERSHIP:
The ownership of these lands is vested in the state and held in
trust by the Imam or Amir for the common benefit of all. No single
individual can lay claim to these land unless granted same by the
state.
CO-OWNERSHIP:
It is sometimes referred to as join tenancy. It is the common
interest or title held in respect of a land undistributed or interest
held in a land to the extent of the obligation created against the
owner and right created in favour of the other person. Examples in
the interest held by heirs to an estate over an undistributed landed
estate. Another example is the interest of the mortgagee in the land
or landed property used as security for a „loan‟ the mortgagee has a
lien in the property to the extent of the money loaned. By the
mortgage agreement and during the pendency of the mortgage,
joint tenancy or co-ownership in the property is created.
HAQ AL-IRTIFAQ
Scholars have defined Haq al-irtifaq severally. The following are
some of the definitions. According to some it denotes the reduction
of property ownership benefit for the purpose of benefiting another
property. Other see it as the right of the different benefit of one
property over the others regardless of the owner. On the other
hand, it is defined as the right to derive benefit gratis from the
immoveable property of someone else.
Thus easement right in general means the benefit an individual or
group people derived from property publicity or privately owned.
In public owned properties, the cause of the easement right are the
individual or group share in its ownership, as in the case of rivers
and main thorough or street or road. In individually owned
properties, the individual as well as the general public may have
easement rights because of the attachment and geographical
topographical relationship between the properties. For example,
difference in ground or flow levels may cause some properties to
drain their rain water into another property or properties.
The right of Haq al-irtifaq has been recognized by the Sharia in the
spirit of generosity which members of the community should
display about each other.
Haq al intifaq (benefit right) is sometimes equated with Haq-al
irtifaq because it also involves the use or benefit derived from other
people‟s property. However there are some differences between the
easement right (Haq al irtifaq) and right of benefit (haq al-intifaq).
1. Easement rights are always specific for immovable property
i.e land or a house, while the right of benefit is general for any
object moveable, immoveable or human.
2. Easement rights cannot be abandoned and it is mandatory
upon the eased property, and the owner is compelled to give
the other these rights, while the right of benefit may be
elective. The owner of the object including properties can
abandon the right of benefit when he wishes as in the case of
land borrowing.
3. In most cases Easement right have a negative return nature
upon the eased property; while in majority of cases, the right
to benefit may have positive returns such as getting back
favours or money for the use.
4. The easement right exist as long as the eased upon property
exists, regardless of it owners existence or death. While the
right of benefit may be conditional for a time defined by its
owners.
TYPES OF EASEMENT RIGHTS
1. Haq al-shurb- Right to irrigation water.
2. Haq al-Shafah- Right of domestic use of water
3. Haq al-majra- Right to channel water
4. Haq al-musli- Right of drainage
5. Haq al murur-Right of passage on roads
6. Haq al Ta‟ali- Right of upstairs
7. Haq al-Jiwar- Neighboring right