دفعہ نمبر 131: اموالِ منقولہ اور غیر منقولہ دونوں کی انفرادی ملکیت کے مندرجہ ذیل پانچ شرعی اسباب ہیں:
- ا) عمل (کام کاج یا تجارت وغیرہ)
- ب) میراث
- ج) جان بچانے کے لیے مال کی ضرورت
- د) ریاست کا اپنا مال عوام کو عطا کرنا۔
- ھ) وہ اموال جو افراد کو بغیر بدل کے (مفت میں) یا بغیر جدو جہد کے حاصل ہو۔
Article 131: Private property consisting of liquid and fixed assets is restricted to the following five Shari’ah means:
- The need of wealth for the sake of living
- Donation from the wealth of the State to its subjects
- Funds taken by individuals without any effort or purchase
There must exist means through which the Legislator (swt) permits ownership, so if the Shari’ah cause is present, then the ownership of the wealth is present. If on the other hand the Shari’ah means is not present then there is no ownership of the wealth even if it is practically possessed, since ownership is the possession of the wealth through a Shari’ah means through which the Legislator (swt) permitted its possession. The Legislator (swt) restricted the means of possession to specific circumstances, limited them to a specific number, and did not leave them unrestricted, and made them clear expansive lines under which are a number of parts which are its branches and issues from its rules. They were not given a specific comprehensive Illah (Shari’ah reason) and so other comprehensive issues are not made analogous to them. That is because new needs only occur in the present wealth, and not in the transactions; in other words, not in the system of relations but rather in its subjects. Therefore, it is necessary to limit the transaction to specific circumstances, which apply to new and numerous needs, and upon the wealth from the angle that it is wealth, and upon the effort from the angle that it is effort. And in the restriction of private wealth in a manner that agrees with the nature (Fitrah), and organising the ownership such that the society is protected from the mistakes that result from it if left unrestricted.
This article explains the Shari’ah means for ownership, in other words, the situations which the Legislator (swt) permitted the utilisation of the property. It is imperative that the practical means of ownership are known and not the means of increasing the property. The Legislator (swt) clarified the means of ownership, in other words, the means for the ownership of the original wealth, which means the means which brings about the ownership of wealth for the individual after he did not own it originally. And the Legislator (swt) clarified the means of increasing the wealth, in other words, the means for increasing the wealth which he owned. The Shari’ah came with rules connected to both ownership and increasing ownership. The trade and rent contracts are from the rules which are related to increasing the wealth, in other words, increasing ownership. Working in hunting, and partnerships, are from the rules connected to ownership, in other words, with possession of the origin of the wealth. This article is concerned with the means for ownership and not those of increasing the ownership.
The evidence for this article is the investigation of the evidences which explained the permission of the Legislator (swt) for the utilisation of the product, in other words, investigation of the evidences regarding practically taking possession. With investigation, it becomes clear that the primary means for possession are five and all the means of possession fall under one of these five.
As for the evidences for these five means: the first means (A) is work, and its evidences are the evidences of the circumstances that an individual gains wealth through effort, in other words, creation of wealth from the angle that it is done through work, which are seven circumstances:
First: Reviving dead land, its evidence being the words of the Prophet :
«مَنْ أَحْيَا أَرْضًا مَيِّتَةً فَهِيَ لَهُ»
“whoever revives dead land, then it belongs to him” reported by Ahmad and Al-Tirmidhi with an authentic chain and also by Al-Bukhari from Umar,and his words:
«مَنْ عَمَّرَ أَرْضًا لَيْسَتْ لأَحَدٍ فَهُوَ أَحَقُّ»
“He who cultivates land that does not belong to anybody is more rightful (to own it).” reported by Al-Bukhari from Aisha(ra). And his words:
«مَنْ أَحَاطَ حَائِطًا عَلَى أَرْضٍ فَهِيَ لَهُ»
“whoever surrounds a land with a wall, it belongs to him.” reported by Ahmad and Abu Dawud with a chain authenticated by Ibn Al-Jarwad and Al-Zayn. Dead land is the land where there are no signs that anyone holds its possession and so there is nothing in terms of fencing, agriculture, building or anything similar. Reviving it is through anything which indicates inhabitation, such as agriculture, planting trees, building and so on. Similar to revival is to place something which indicates that someone has taken possession of it, such as planting hedges or fencing or pillars and so on.
And so any individual citizen who revives a dead land takes possession of it according to the rules of the Shari’ah, irrespective of whether they were a Muslim or a Dhimmi: because the texts are general, encompassing all the individual citizens.
Second: Hunting, its evidence being the words of Allah (swt):
((وَإِذَا حَلَلْتُمْ فَاصْطَادُوا)) [المائدة 2] وقوله تعالى: (( أُحِلَّ لَكُمْ صَيْدُ الْبَحْرِ ))
“But when you come out of Ihram, then [you may] hunt.” (TMQ 5:2), and His (swt) words: “Lawful to you is game from the sea.” (TMQ 5:96).
Third: To act as a middle-man or commission agent, the evidence being what was narrated from Qays b. Abi Gharza Al-Kanani who said:
«يَا مَعْشَرَ التُّجَّارِ، إِنَّ هَذَا الْبَيْعَ يَحْضُرُهُ اللَّغْوُ وَالْحَلْفُ، فَشُوبُوهُ بِالصَّدَقَةِ»
“O company of merchants, unprofitable speech and swearing takes place in business dealings, so mix it with Sadaqah (alms)” (reported by Ahmad with an authentic chain).
Fourth: the Mudarabah partnership (where one person invests wealth into a partnership, and the other invests effort), its evidence being what was narrated from Al-Abbas Bin Abdul-Muttalib that when he handled money as Mudarabah, he used to stipulate on the partner not to travel with it by the sea, nor to descend a valley nor to trade with live things, otherwise he would have to guarantee losses incurred.
«فَبَلَغَ ذَلِكَ رَسُولَ اللهِ فَاسْتَحْسَنَهُ»
"When the Prophet of Allah became aware of that, he approved it". Even though Al-Hafiz said that: “Al-Bayhaqi reported it with a chain that he found weak”, Mudarabah (Al-Qirad)is confirmed by the consensus of the companions: Ibn Hazm said in Maratib Al-Ijma’ regarding it after he mentioned that he did not find an evidence for it in the Sunnah: “but it is a correct consensus. We are certain that it used to take place at his time, and he knew about it and confirmed it, and if it was not for that it would not be permitted”, the same as Al-Hafiz reported about Ibn Hazm in Talkhis Al-Khabir.
From the evidences of the consensus of the companions:
Malik reported from Zayd Bin Aslam from his father that he said: ‘Abd Allah and ‘Ubayd Allah, the two sons of Umar (ra) went out with the army to Iraq. They passed by Abu Musa Al-Ash’ari, who was the Amir of Basra, and he welcomed them and said: If I was able to help you with any issue, I would. Then he said: Here is some of the wealth from the wealth of Allah (swt) that I want to send to the leader of the believers. I will lend it to you, so buy some of the goods from Iraq, and sell them in Madinah. Give the capital to Umar (ra) and keep the profit for yourselves. They replied: we would like that. So he did that and wrote to Umar (ra) informing him about their taking the wealth. When they returned to Madinah they sold the goods and made a profit, and so when they gave the original capital amount to Umar (ra), he said: Were all the soldiers given similar to what you were given? They replied in the negative. And so Umar (ra) said: Because you were the sons of the leader of the believers, he gave it to you. Give me the money and its profit. ‘Abd Allah remained silent. As for ‘Ubayd Allah, he said: this is not necessary for you O leader of the believers, if this wealth was reduced or destroyed we would have guaranteed it (in other words, paid the original capital in full). And so Umar (ra) said: Give it to me. Abdullah remained silent and ‘Ubayd Allah repeated what he had said. A man from those sitting around Umar (ra) said: O leader of the believers, if you made it a Qirad for him? (in other words, a Mudarabah partnership), and so Umar (ra) said: I made it as a Qirad (loan) for him. So, Umar (ra) took the original capital, and half of the profit, and his two sons took the other half of the profit.This was reported in Al-Muwatta and Al-Hafiz said its chain is authentic and this was done in front of a crowd of the companions.
Similarly the action of Al-Qirad (Al-Mudarabah):
Malik reported from Al-Ala Bin ‘Abd alRahman from his father from his grandfather that ‘Uthman b. ‘Affan (ra) gave him money as Qirad to work with it, and the profit to be split between them.
And Al-Bayhaqi reported in Al-Sunan Al-Kubra, and Al-Hafiz said that the chain is strong, from Hakim b. Hizam that he used to give money to a man on the basis of Qirad, and made it a condition that he wouldn’t go to the Wad valley with it, and not buy animals with it, nor transport it overseas, and if he did any of that he would be liable for it. He said: if he overstepped the limits, he would be liable.
Fifth: the Musaqah (renting trees for a portion of their yields) partnership, its evidence is what was narrated by ‘Abd Allah b. Umar who said:
«عَامَلَ رَسُولُ اللهِ أَهْلَ خَيْبَرَ بِشَطْرِ مَا يَخْرُجُ مِنْ ثَمَرٍ أَوْ زَرْعٍ»
“The Messenger of Allah (saw) contracted the people of Khaibar to work and cultivate in return for half of the fruits or produce.” (agreed upon).
Sixth: working for someone else for a salary, the evidence being His (swt) words:
((فَإِنْ أَرْضَعْنَ لَكُمْ فَآَتُوهُنَّ أُجُورَهُنَّ ))
“And if they breastfeed for you, then give them their payment.” (TMQ 65:6), and what was narrated by Aisha(ra) who said:
«اسْتَأْجَرَ رَسُولُ اللهِ رَجُلاً مِنْ بَنِي الدِّيَلِ هَادِياً خِرِّيتاً وَهُوَ عَلَى دِينِ قَوْمِهِ وَدَفَعَا إِلَيْهِ رَاحِلَتَيْهِمَا وَوَاعَدَاهُ غَارَ ثَوْرٍ بَعْدَ ثَلاثِ لَيَالٍ»
“The Messenger of Allah hired a man from the tribe of Bani-Ad-Dil as an expert guide who was a pagan (follower of the religion of the pagans of Quraish). The Prophet and Abu Bakr gave him their two riding camels and took a promise from him to bring their riding camels in the morning of the third day to the Cave of Thaur” (reported by Al-Bukhari).
Seventh: Buried minerals/treasures, and its evidence being the words of the Messenger :
«وَفِي الرِّكَازِ الْخُمُسُ»
“One fifth is compulsory to be paid (Al-Zakah) on buried Treasure.” (agreed upon from Abu Hurayrah).
These are the evidences for the seven circumstances which are the evidences for the first means of ownership which is work.
As for the second means (B), inheritance, its evidence is the words of Allah (swt):
(( يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ))
“Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate.” (TMQ 4:11)alongside the rest of the texts regarding inheritance from the Quranic verses and the narrations from the Sunnah.
The third means (C) is the need for wealth for the sake of living, and its evidence is the evidence for maintenance, from the fact that it is obligatory to be given to the individual if they are unable to earn enough practically, such as the one who is small, or incapable of work, or is legally considered like the one unable to work even though he is capable. So the Shari’ah made it obligatory upon those close inheritors to him to provide him with maintenance and if they are unable to then it falls upon the Bayt Al-Mal. The indication of that evidence is that he possesses that wealth which he took as maintenance in order to survive.
The fourth means (D) is the State donation of some of its wealth, such as granting some portions of land, or giving wealth in order to repay the debts, or agricultural assistance. The evidence for the granting of land is what was narrated from Bilal Al-Muzni that:
«أَنَّ رَسُولَ اللهِ أَقْطَعَهُ العَقِيقَ أَجْمَعَ»
“The Messengerصلى الله عليه وآله وسلم bestowed the land of Al-Aqiq as fief” reported by Abu ‘Ubayd in Al-Amwal, and what was narrated from ‘Amru b. Shu‘ayb who said:
«أَقْطَعَ رَسُولُ اللهِ نَاساً مِنْ مُزْيَنَةِ أَوْ جُهَيْنَةِ أَرْضاً»
“The Messengerصلى الله عليه وآله وسلم bestowed a land to some people from Mozinah or Johainah as fief” reported by Abu Yusuf in Al-Kharaj. With respect to the issue of giving money to repay the debts, Allah (swt) gave some of the shares of Zakah to indebted people; He (swt) said:
“And for those in debt” (TMQ 9:60). The Messenger said:
«فَمَنْ تَرَكَ دَيْناً فَعَلَيَّ، وَمَنْ تَرَكَ مَالاً فَلِوَرَثَتِهِ»
“whoever left a debt behind then it is upon me, and whoever left property then it is for his heirs” (agreed upon from the narration of Abu Hurayrah), and the meaning of the words of the Messenger : “upon me” is that it is upon the State, or in other words, upon the Bayt Al-Mal. And as for giving the farmers money for the sake of agriculture, Umar b. Al-Khattab (ra) gave money from the Bayt Al-Mal in Iraq to assist the farmers in the cultivation of their land and helped them pay for their requirements without taking anything back from them, and no one rebuked him over that even though it was something that should have been rebuked (if it was not permitted in origin), and so it is an Ijma’.
Therefore, these three circumstances: granting land, giving money to repay debts, and giving financial assistance for agriculture, are all causes for ownership. The Imam has the right to spend the wealth of the State according to his opinion and Ijtihadin any permitted issues and so whoever has the money spent upon them has gained the ownership of the wealth through this donation.
As for the fifth means (E), it encompasses five circumstances:
First: The relationships of individuals with each other, such as giving gifts (Hadiyah), donations (Hibah), and bequests (Wasiyyah). It is narrated from Abu Hamid as-Sa‘adi who said:
«غَزَوْنَا مَعَ النَّبِيِّ غَزْوَةَ تَبُوكَ... وَأَهْدَى مَلِكُ أَيْلَةَ لِلنَّبِيِّ بَغْلَةً بَيْضَاءَ وَكَسَاهُ بُرْدًا»
“We accompanied the Prophet in the Ghazwa of Tabuk and the king of 'Aila presented a white mule and a cloak as a gift to the Prophet.” (reported by Al-Bukhari). This is evidence for the permission of gifts. And the Prophet said:
“Give gifts to each other, love each other”, reported by Al-Bukhari in Al-Adab Al-Mufrad from Abu Hurayrah, and also reported by Al-Bayhaqi, which indicates the permissibility of gifts, and he said:
«لاَ يَرْجِعْ أَحَدُكُمْ فِي هِبَتِهِ إِلاَّ الْوَالِدَ مِنْ وَلَدِهِ»
“No one should take back their gift, except what the father gave to his son” reported by Ibn Maja fromAmrf Bin Shu’aib from his father from his grandfather, and he said:
«الْعَائِدُ فِي هِبَتِهِ كَالْعَائِدِ فِي قَيْئِهِ»
“One who takes back his donation (hibah) is like the one who takes back his vomit” agreed upon from Ibn ‘Abbas, which indicates the permissibility of donations. And he said to Sa’ad Bin Malik:
«أَوْصِ بِالثُّلُثِ، وَالثُّلُثُ كَثِيرٌ»
“Will a third, and a third is too great” (agreed upon from Sa’d). This is the evidence for the permissibility of leaving behind a will.
Second: being entitled to wealth as a recompense for harm, such as the compensation for killing someone and the compensation for injury; Allah (swt) said:
((وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ))
“And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required].” (TMQ 4:92), and the Prophet said:
«فِي السِّنِّ خَمْسٌ مِنَ الإِبِلِ»
“Five camels for a tooth” (reported by Al-Bayhaqi and authenticated by Ibn Hibban and Al-Hakim), and he said:
«فِي دِيَةِ الأَصَابِعِ الْيَدَيْنِ وَالرِّجْلَيْنِ سَوَاءٌ عَشْرٌ مِنْ الإِبِلِ لِكُلِّ أُصْبُعٍ»
“The blood-money (Diyah) for the fingers on the hands and (the toes of) the feet is the same: Ten camels for each finger.” (reported by Al-Tirmidhi from Ibn ‘Abbas, and he said that the narration is Hasan Sahih). Al-Bayhaqi reported something similar in the book of Abu Bakr Bin Muhammad. Therefore, the bereaved family receive the compensation for the one killed and the injured person received the compensation for the limb lost.
Third: being entitled to Mahr (dowry) and its dependencies; Allah (swt) said:
((وَآَتُوا النِّسَاءَ صَدُقَاتِهِنَّ نِحْلَةً))
“And give the women [upon marriage] their [bridal] gifts graciously.” (TMQ 4:4), and so she possesses her dowry simply through the marriage contract.
Fourth: that which is found. The Messenger was asked about anything which was found and he said:
«مَا كَانَ مِنْهَا فِي طَرِيقِ الْمِيتَاءِ أَوْ الْقَرْيَةِ الْجَامِعَةِ فَعَرِّفْهَا سَنَةً فَإِنْ جَاءَ طَالِبُهَا فَادْفَعْهَا إِلَيْهِ وَإِنْ لَمْ يَأْتِ فَهِيَ لَكَ»
“If it is in a frequented (Maytah) road and a large town, make the matter known for a year, and if its owner comes,give it to him, but if he doesn’t, it belongs to you.”(reported by Abu Dawud from ‘Abd Allah b. ‘Amr b. ‘Al-As). ‘Iyad Bin Himar said: the Messenger of Allah said:
«مَنْ وَجَدَ لُقَطَةً فَلْيُشْهِدْ ذَوَيْ عَدْلٍ وَلْيَحْفَظْ عِفَاصَهَا وَوِكَاءَهَا فَإِنْ جَاءَ صَاحِبُهَا فَلاَ يَكْتُمْ وَهُوَ أَحَقُّ بِهَا وَإِنْ لَمْ يَجِئْ صَاحِبُهَا فَإِنَّهُ مَالُ اللَّهِ يُؤْتِيهِ مَنْ يَشَاءُ»
“whoever found a lost property, let him have two just witnesses over it, and let him protect it and tie it, and if its owner comes along, then do not conceal it from him, he has more right to it. Otherwise it belongs to Allah (SWT), who gives it to whomsoever He wills.” (reported by Ahmad with an authentic chain), and so the lost property is owned by whoever found it if the conditions are met.
Fifth: the recompense of the Khalifah, assistants, governors, and all other rulers. It is narrated from the Prophet that when he appointed ‘Itaab Bin Usaid as a governor over Makkah, he paid him a Dirham for each day. It is narrated that ‘Itab addressed the people in Makkah and said:
« يَا أَيُّهَا النَّاسُ، أَجَاعَ اللهُ كَبِدَ مَنْ جَاعَ عَلَى دِرْهَمٍ، فَقَدْ رَزَقَنِي اللهُ دِرْهَماً كُلَّ يَوْمٍ، فَلَيْسَتْ بِيَ حَاجَةٌ إِلَى أَحَدٍ»
“O people, Allah starves a person who keeps hungry after spending a Dirham. Allah has provided me a Dirham every day, so I have no need for anyone” (reported by Ibn Sa’d in Al-Tabaqat with a Mursalchain whose narrators are trustworthy). And it is narrated that the day after Abu Bakr (ra) was given the pledge of allegiance, he went out to sell clothes as he used to before taking the pledge, and so he met Umar (ra) on the way who asked him: “where are you going” to which Abu Bakr (ra) replied: “to the market”. So Umar (ra) asked him: “And what about the Muslims’ affairs?” to which Abu Bakr (ra) replied: “And how will I provide for my family?”. Umar (ra) then said: “We will fix a payment to you, and so they gave him half a sheep every day”, reported by Ibn Hajr in Fateh Al-Bari, and Al-Zayla‘i reported something similar in Nasab Al-Rayah. That was a consensus of the companions to recompense the Khalifah. So this is the recompense for the Khalifah, governors, and ‘Amil which they then possess. Therefore, it is from the causes of possession and it is not a salary, so it is not categorised under the section of hiring an employee.
These five circumstances are encompassed by the fifth means from the means of ownership. These evidences for the five means of ownership are confirmed through investigation of the texts as being the only means of ownership. In which case they are the permission of the Shari’ah for ownership, and anything other than these five means are from the means of increasing property, such as trade, industry, agriculture, which are not means of ownership. With this explanation the evidences of the article have been clarified.