(1993, 1995, 1998, 2000, 2001, 2003, 2005/A)
Q. Define ownership? What properties are included in Mal. (1997)
Q. Discuss the concept of ownership in Islam. How it is acquired and lost? (2004/A)
Q. Define ownership. What are different modes of acquiring and losing it? (2006/A)
Q. Elaborate the theory of ownership in the Islamic Civil Law.(Supply.2001)
Ownership or milk is regarded very important in Islamic law as it relates to man’s worldly desires and the relation of one man with another. Islamic law provided different modes of acquiring and losing ownership, as it avoids doubt and secure the sanctity of society.
2. Meaning and definition of ownership
(I) General definition
“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.”
(II) As defined by sadru’sh shariat
“It is the expression of the connection existing between a man and a thing, which is under his absolute power and control to the exclusion of control and disposition by other”.
3. Elements in ownership
The most essential elements in the concept of ownership (milk) are the presence of “Control” and “Exclusion of others”. The person who has such powers and control is called the malik or owner.
4. Subject matter of ownership
The thing over which the juristic conception of milk extends may be “Mal”
(I) Meaning of Mal
According to Al-Hawi
“Mal is the name for things other than human beings which have been created for the benefit of men, and which a man can hoard and dispose of at his option.”
(II) Things which are included in Mal
A mal may include following things.
(i) Things having a corpus
According to all Muslim jurists all things which have a body are included in “Mal”.
(ii) Things connected with corpus
According to Malikis and Shafiis, things that are connected with the corpus or physical object are included in mal. Such as usufruct or Manafah, either in the shape of produce of a physical object or of labour and services of men
(iii) Pure rights
According to Hanbalis, pure rights are included in Mal like the right to stipulate an option.
(III) Modern concept of Mal
In traditional Islamic law, Mal not included incorporeal rights like copyrights, patents etc. but modern Islamic jurists and courts have attempted to expand the concept of mal or property to include such rights.
(IV) Classification of Mal
Following classification of mal have been laid down by the jurists.
(i) Moveable and immoveable
By immoveable property is primarily means land and along with it all permanent fixtures such as buildings.
The characteristic of moveable property is that it may be removed from one place to another.
(ii) Similar and dissimilar
An article is said to belong to the class of similar (Maithli) if its substitute can be found by weight or measure and quality such as gold, silver etc.
A thing belong to the class of dissimilar if the like of it is not available in the market or available with slight change , like houses, animals etc.
(iii) Marketable and non-marketable
Marketable things are those that can be converted to private property.
Non-marketable things are those that cannot be converted to private property, like air, sunshine, birds, in the air etc. these things are not regarded as mal.
(iv) Consumable and non-consumable
Consumable things like food and the like. Non-consumable goods like afiouse, Gold, etc.
5. Modes of acquiring ownership
According to the strict theory of Islamic law, ownership is acquired in the followings ways.
(i) By Ihraz (original acquisition)(ii) By Naql (transfer)
(iii) By Khalf (succession)
According to the modern jurists, ownership may also be acquired.(iv) By prescription
(I) By Ihraz
It means securing or taking possession of things not already owned by another. This is original acquisition. Such objects as are not intended for common use and have not already been appropriated by some one may be secured as property e. g. trees growing on mountains etc.
(II) By 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 is effected by means of a contract or Aqd. Which may be in the from of sale, gift etc.
(III) By 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.
(IV) By prescription
According to the strict theory of Muhammadan law, a thing to another cannot be acquired by more possession however long, so ownership cannot be acquired by prescription.
But in modern times, the same result has been achieved indirectly by the lawyers of Turkey and Egypt, recognizing the power of the Sultan to forbid the Qazi to hear suits instituted after the lapse of a certain time. In addition to this the law permits acquisition of rights connected with property in the nature of easements by prescription. For instance, a right of way over another’s land.
6. Modes of losing ownership
Following are the different modes of losing ownership.(i) By transfer
(ii) By extinction of thing
(iii) By death of owner
(iv) By operation of law
(I) By transfer
Ownership may be lose by an act transfer. The original owner may transfer his thing to another by way of sale, gift, waqf etc. in that case, his ownership will be extinguished and will passed to the new owner.
(II) By extinction of thing
If a thing is destroyed, then the ownership of an owner is losed or comes to an end.
(III) By death of owner
If a owner of a thing dies then his ownership over that thing comes to an end unless his right over that things is of heritable character. Which transfers to his legal heirs after his death.
(IV) By operation of law
An ownership may also comes to an end by the operation of law.
7. Ownership in Islam as compared to that of English law
Ownership in Islamic law as compared to the concept in English law is quit exhaustive and include in it possession as part and parcel therefore, whereas in English law ownership is only a juristic relationship between man and the right that he possesses in respect of certain object.
To conclude, I can say, that every human being has right to make, such use of his physical and mental faculties as chooses. Provided has does not interfere with similar liberty of others. It is by the exercise of this inherent right that rights and obligations connected with property are mostly acquired, transferred or extinguished.