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Books Section > The Religion of Islam > Acquisition and Disposal of Property


Acquisition and Disposal of Property:


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Acquisition of Individual Property:

Property may be acquired in three ways, by earning (iktisab), by inheritance (warathah) and by gift (hibah). Of these, inheritance, on account of its importance, is dealt with in a separate chapter. Acquisition of property by the individual, whether male or female, is recognized by Islåm as one of the basic laws regulating human society: "For men is the benefit of what they earn. And for women is the benefit of what they earn" (4:32). Both sexes have also an equal right to inheritance of property: "For men is a share of what the parents and the near relatives leave, and for women a share of what the parents and the relatives leave" (4:7). No limitation is placed upon the property or wealth which an individual may acquire or give away. The Quran speaks even of heaps of gold being in the possession of a man which he may give away to a woman as her dowry: "And (if) you have given one of them a heap of gold, take nothing from it" (4 :20). Islåm is thus opposed to Bolshevism, which recognizes no individual right of property; but it is at the same time socialistic in its tendencies, inasmuch as it tries to bring about a more or less equal distribution of wealth.

Unlawful Means of Acquiring Wealth:

All unlawful means of acquiring property are denounced: "O you who believe, devour not your property among yourselves by illegal methods except that it be trading by your mutual consent" (4:29); "And swallow not up your property among yourselves by false means, nor seek to gain access thereby to the judges, so that you may swallow up a part of the property of men wrongfully while you know" (2:188). The latter verse alludes to bribery. Dacoity and theft are spoken of elsewhere as punishable crimes (5:33, 38). Misappropriation is forbidden: "Allåh commands you to make over trusts to those worthy of them" (4:58). Gambling is prohibited as being a false or dishonest means of acquiring property: "They ask thee about intoxicants and games of chance. Say, In both of these is great sin and some advantage for men, and their sin is greater than their advantage" (2:219) "Intoxicants and games of chance ... are only an uncleanness, the devil’s work; so shun it that you may succeed" (5:90). Intoxicating liquors and gambling are mentioned together in both places, and one of the reasons for their prohibition is that they are an aid to creating mischief and enmity between members of the same society: "The devil desires only to cause enmity and hatred among you by means of intoxicants and games of chance" (5:91). All kinds of lotteries and card games etc., involving a stake, however small the sum involved, fall within the definition of games of chance, and are therefore prohibited by Islam. They not only promote habits of indolence and are thus a negation of honest labour, but also reduce some members of society to penury while others prosper at their expense. Usury, which is dealt with later on, is also prohibited for the same reason.

The Quran on the Exercise of Property Rights:

The Quran gives full rights of disposal of property to its owner, whether male or female, but at the same time, it requires the owner to be most careful in spending it. There are many injunctions of a general nature to that effect. Thus, speaking of the righteous servants of God (‘ibad al-Rahman) it says: "And they who, when they spend, are neither extravagant nor parsimonious, and the just mean is ever between these" (25:67). And elsewhere: "And make not thy hand to be shackled to thy neck, nor stretch it forth to the utmost limit of its stretching forth, lest thou sit down blamed, stripped off" (17:29). But it does not content itself with these general directions, and gives society or the state a right to interfere when money is being squandered by its owner: "And make not over your property, which Allah has made a (means of) support (qiyam) for you, to the weak of understanding (sufaha’), and maintain them out of it, and clothe them and give them a good education" (4:5). Here certain owners of property are called sufaha’, and the community or the state is enjoined not to give such people control of their property, which is here described as your property, because Allah has made it "for you a means of support"; and the rule is laid down that these owners of property should be maintained out of the profits of the property, the management being clearly in other hands. Thus wealth, though possessed by individuals, is recognized as a national asset, and a check placed upon the rights of the individual if money in his possession is being wasted. Sufaha’ is the plural of safih which means a person deficient or unsound in intellect or understanding or having little or no understanding (TA., LL.). The commentators make various suggestions as to what is here meant by this word, some saying that it applies to women or children, but Ibn Jarir rightly points out that this view is wrong, and the word conveys a general significance (IJ-C. IV, p, 153). In fact, minors are not spoken of in this verse at all, since they are mentioned separately in the verse that follows, and the sufaha’ of this verse are persons who, on account of deficiency or unsoundness in intellect, are unable to manage their own property.

This conclusion is further corroborated by the use of the word safih in connection with the contracting of debts: "But if he who owes the debt is unsound in understanding (safih) or weak (dza’if), or if he is not able to dictate himself, let his guardian dictate with fairness" (2:282). Here the safih and the dza’if are mentioned separately; the former signifying the weak in understanding whether male or females, and the latter minors. Thus, the Quran requires that persons who, on account of weakness of intellect, mismanage their property and squander their wealth should be deprived of the control of their property and maintained out of its profits, the control being handed over to some person who is called a waliyy (guardian) in 2:282.

Hajr or Restrictions on Disposal of Property:

This restriction on the exercise of rights of property by individual owners is spoken of in Tradition collections as hajr (Bu. 43:19), which literally means what is forbidden, that being also the terminology of the jurists. Tradition lays great stress on saving wealth from being wasted. Bukhari has the following heading for one of his chapters: "There is no charity unless a man has sufficient to give, and whoever spends in charity and he is himself in want or his family is in want or he has a debt to pay, it is more in the fitness of things that the debt should be paid than that he should spend in charity or free a slave or make a gift, and such a gift or charity shall be annulled, for he has no right to waste the wealth of the people (amwal al-nas); and the Holy Prophet has said, "Whoever takes the wealth of the people that he may waste it, Allah will destroy him, unless he is a man well-known for his patience (sabr) so that he prefers others before himself, though poverty may afflict him" (Bu. 24:18). Here, the individual property of a man is called the wealth of the people, and a man is prohibited from making even charitable gifts when he does not have sufficient to support those dependent on him. According to tradition the Prophet is reported to have said: "Allah hates three things in you: useless talk and wasting of wealth and asking or begging (su‘al) frequently" (Bu. 24:53). This tradition is repeated frequently in the Bukhari and other collections, and forms the basis of restrictions [Footnote: For example the laws placing restrictions on disposal of agricultural property fall within the definition of hajr. In this case, the owners of agricultural land are prevented from selling their lands in certain cases, except with the permission of the State: and this measure is in their own interest, for otherwise all agricultural land would gradually pass out of their hands and they would be left without any means of support.] which may rightly be laid on owners of property for their benefit. The State is therefore entitled to make laws for the benefit of owners of property, placing restrictions on them as to the disposal of that property.

Guardian of Minor:

A guardian is also appointed to deal with the property of minors. The Quranic injunction on this point is as follows: "And test the orphans until they reach the age of marriage. Then if you find in them maturity of intellect, make over to them their property, and consume it not extravagantly and hastily against their growing up. And whoever is rich, let him abstain, and whoever is poor, let him consume reasonably. And when you make over to them their property, call witnesses in their presence; and Allah is enough as a Reckoner" (4:6). A minor is thus not allowed to manage his own property which must be made over to a guardian. If the guardian is rich, he is required to do the work of guardianship honorarily, and if he is poor, his wages would be a charge on the property. The age of majority is eighteen years, according to Abu Hanifah, in the case of males and seventeen in the case of females (H. II, p. 341), but according to Shafi’i and Ahmad, it is fifteen in both cases (H. II, p. 342). In a tradition it is stated that ‘Ibn ‘Umar was not enlisted in the army when he was fourteen years old but was taken when he was fifteen (Bu. 52:18), but this by no means shows that maturity of intellect is attained at fifteen, for at that time there were so few Muslims that could take the field against overwhelming numbers, that boys and old men had to be enlisted perforce.

Honest Dealing in Business:

Subject to what has been stated above and what will be stated further on, the owner of movable property, whether a male or a female, has the right to sell or barter it. The Quran lays stress on honest and straight dealing in the very earliest revelation: "Woe to the cheaters! who, when they take the measure (of their dues) from men, take it fully; and when they measure out to others or weigh out for them, they give less than is due" (83:1-3); "And give full measure when you measure out and weigh with a true balance. This is fair and better in the end" (17:35); "Give full measure and be not of those who diminish; and weigh things with a true balance, and wrong not men of their dues and act not corruptly in the earth making mischief" (26:181-183). Tradition also lays stress on honest dealing, so much so that if there is any defect in a thing it must be pointed out to the intending buyer (Bu. 34:19; Ah. III, p. 491). The Prophet himself is reported to have written to ‘Adda’ ibn Khalid as follows: "This is the writing by which Muhammad, the Messenger of Allah, has made a purchase from ‘Adda’ ibn Khalid, the barter of a Muslim with a Muslim, there is no defect in it nor any deception or an evil" (Bu. 34:19). According to another tradition he is reported to have said: "If the two parties speak the truth and make it manifest, their transaction shall be blessed, and if they conceal and tell a lie, the blessing of their transaction shall be obliterated" (Bu. 34:19). Honesty and bona fides in matters of sale are stressed in a large number of traditions.

General Directions Relating to Sale Transactions:

The many other details that are met with in Tradition need not be stated here, being but of minor importance; a few only which are of a general nature are briefly noted. Men and women are expressly mentioned as selling to and buying from one another, so that there is not the least sex disqualification in this respect (Bu. 34:67). While a transaction is being carried on with a man, another should not intervene (Bu. 34:58), but auction is allowed (Bu. 34:59). There is no restriction as to whom a man may sell his property, but the withholding of food-stuffs so that they may become dear (ihtikar) is prohibited (Bu. 34:54), and so is the inflation of prices in general. The seller of cattle is prohibited from leaving them unmilked some days before selling, so that they may fetch a higher price (Bu. 34:64). Sale of fruits or crops before they are in a fit condition to be reaped is deprecated, because it gives rise to disputes (Bu. 34:85). In the tradition narrated in this chapter, it is expressly stated that it was not an injunction but an advice. If the fruits on trees are valued, they may be sold (Bu. 34:75, 82, 83). Imaginary sales, when there are no goods to deliver, are prohibited (Bu. 34:61); neither should one sell what one does not possess (Ah. II, pp. 189, 190). The sale of land is not favoured, and it is recommended that one should not sell his land or house unless he intends to purchase other land or another house with the money (Ah. I, p. 190; III, p. 467). The taking of oaths in sale transactions is expressly forbidden (Ah. V, p. 297).

Mortgage:

Mortgage of property, or giving it as security for debt, is also allowed. The Quran expressly allows the giving or taking of a security of which possession is taken by the mortgagee (rihan-un maqbudzah) (2:283); and though this case is mentioned in connection with a journey, the words have been taken by all commentators as conveying a general permission, and reliable traditions corroborate this conclusion. It is related that the Prophet himself left his shield as security with a Jew when borrowing some barley from him (Bu. 48:1, 2). When a horse was given as a security, the mortgagee was allowed to use it for riding as a compensation for feeding it. Similarly, a milch-animal’s milk was allowed to the mortgagee when he fed the animal (Bu. 48:4). Hence, it is evident that when agricultural land or a house is mortgaged with possession, the mortgagee can derive benefit from it when he pays land-revenue or house-tax, or spends money on the upkeep of the property.

Bequest:

An owner of property is also allowed to bequeath his property for a charitable object or to anyone excepting a legal heir. This is called wasiy-yah, and the making of a will is specially recommended. The Quran speaks of the making of a will as a duty incumbent upon a Muslim when he leaves sufficient property for his heirs: "It is prescribed for you, when death approaches one of you, if he leaves behind wealth for his parents and near relatives, to make a bequest in a kindly manner; it is incumbent upon the dutiful" (2:180). And the Prophet is reported to have said: "It is not right for a Muslim, who has property to bequeath, that he should pass two nights without having a written will with him" (Bu. 55:1). But this duty, or right, is subject to certain limitations. In the first place, not more than one-third of the property can be disposed of by will (Bu. 55:2, 3); and secondly, no will can be made in favour of an heir (AD. 17:6; Ah. IV, p. 186). But, as expressly stated in the Quran, the making of a will is incumbent only on well-to-do people. This is also mentioned in Traditions (D. 22:5). The reason for limiting the bequest to one-third is clearly stated in a tradition: "That one should leave his heirs free from want is better than that they should be begging of other people" (Bu. 55:2). And the reason for excluding the heirs is that no injustice may be done to certain heirs at the expense of others. A wasiyyat which is against these principles would be ineffective to that extent. It may be added that if a property in respect of which a bequest is made is encumbered with a debt, the debt is payable before the will is executed [See Chapter VIII for a complete discussion on Inheritance.].

Gift:

An owner of property has also the right to dispose of his property by gift (hibah). The giving and accepting of gifts is recommended very strongly, and even the smallest gift is not to be despised (Bu. 51:1). A gift is allowed in favour of a son, but it is recommended that similar gifts should be made in favour of other sons (Bu. 51:12). The husband can make a gift to his wife, and the wife to her husband, or others than husband (Bu. 51:14, 15). Gifts from, and in favour of, non-Muslims are allowed (Bu. 51:28, 29). A gift may also be compensated (Bu. 51:11). The jurists allow a hibah bi-l-‘iwadz, or gift for a consideration, and also hibah bi-sha¸ti-l- ‘iwadz, or a gift made on the condition that the donee shall give the donor some determinate thing in return for the gift (AA.). The gift transaction (hibah) is complete when the donee has accepted it and taken possession of the gift. It is not allowed to a person to revoke the hibah when it has been accepted by the donee (Bu. 51:30). While a will is allowed only to the extent of one-third of the property, no such limitation exists on hibah, because in this case the owner divests himself of all rights in the property immediately, while in the case of a will, not the owner but the heirs are deprived.

Waqf:

Waqafa means literally he was, or became, still or stationary or he continued standing (LL.), and in law waqf is "the settlement in perpetuity of the usufruct of any property for the benefit of individuals or for a religious or charitable purpose" (AA.). Subject to conditions already noted, and those which follow, an owner of property has a right to make his property waqf, or dedicate it to a particular purpose. In Bukhari the traditions relating to waqf are given in the book of Wasaya (Wills), though the two differ in many respects, Waqf, like gift, takes effect immediately while the will takes effect after the death of the testator, and it differs from both, gift and will, inasmuch as the property which is dedicated remains untouched, not being the property of a particular person, and it is only the income drawn from it that is spent on the particular objects specified in the waqf deed. Many cases of waqf are reported in Tradition. Abu Talhah created a waqf, the income from which was to be spent on his poor relatives (aqarib), and this was done under the Prophet’s direction (Bu. 55:10). From (this it is evident that a man can create a waqf for the benefit of his own relatives. It is made clear in another tradition that a man’s son or his wife falls within the definition of his relatives (Bu. 55:11). The man who creates a waqf is allowed to draw from it, for he himself may be its manager ({mutawalli) as well as anybody else, even though this be not stated in the waqf deed (Bu. 55:12). Another tradition states that ‘Umar created a waqf in accordance with the directions of the Prophet in favour of the poor as well as his rich relatives (Bu. 55:29). There are other instances on record in which a waqf was created for the benefit of the poor as well as the near relatives (aqrabin) (Bu. 55:29). The person who creates the waqf may also include himself among the beneficiaries of the trust (Bu. 55:33). 

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