3.0 CONCEPT OF AL-MILKIYAH-isb542-okt

PREPARED BY:
MADAM NORZITAH ABDUL KARIM

USTAZAH SHARIFAH FAIGAH SYED ALWI
1
• Literal :
“The expression of the connection between man
and thing/property which is under his exclusive
control and disposition”.
• According to Al-Taffazani:
“The power of exclusive control and disposition.”
• According to Mejelle ( Sayuti & Qarafi):-

“It is something of which man has become the
owner whether it is in either physical form (ayn)
or benefit (manfaah) or both.”
2
In general, all the property could become the
ownership of someone except in the following
conditions :
a)The property that is meant for the public.

e.g main road, public garden, river and etc.
Since this property is the for public use, no
one should have the right to owned it.
a)Theproperty that could be owned but not

allowable by syara’.
e.g waqaf and baitul mal property.
3
A) Complete ownership
(milk al-tam)
A) Incomplete ownership
(milk al-naqis)
4
It refers to the ownership of both:
1) The property (ayn)
1) The benefit (manfaah).
5
Characteristic of Milk al-Tam:
The ownership is permanent and not restricted to

a certain period of time except if the owner
intentionally ends his ownership by transferring
to other i.e sell, or give away.
a)The owner has the right and freedom to obtain
the benefit of the property or dispose it to others.
a)Ifthe owner destroyed the property or damage,

no compensation is required to be paid. However,
he can be charged if the destroyed property is a
kind of animal. The owner can also be restrained
from managing his property if he falls under
‘safih’ category.
6
1. Mubah property
2. Contract that gives effect to
transfer ownership
3. Inherited / wasiah
4. Compensation / indemnity
5. Syuf’ah
7
Property/ asset that yet to be owned by someone
and allowable by shariah.
e.g spring water, animal in the jungle, empty land.
Methods to acquire mubah property:
a)Work that is done on Ihya al Mawat:
•The land has no other facilities and far from
residential area
•If the land is owned by someone which is not
being used and located in a residential area or not
in residential area but have a facilities – it is not
considered as ihlya al-mawat.
•If the land is owned by someone and not being
utilized – not ihya al mawat.
8
Methods to acquire mubah property (cont..):
b) Al-Sayd (animal hunting):
•The animal that being caught from hunting

activities whether in jungle, sea or sky which
does not belong to anyone.
•In order to claim that the ownership of the
animal that was caught is your afford, it must

meet the following criteria :-
i. The capture has resulted the animal to be

trap in our custody and the animal could not
escape and return to its original place.
ii. It is your attention to catch the animal.
9
c) Mineral (al-Ma’din) and a Treasure Hunt (al-
Rikaz):
There are 3 types of mineral:
i.) The mineral that could be molded and shaped e.g
gold
ii.) The mineral that could not be molded. e.g diamond
iii.) The mineral in liquid form e.g oil
There are 2 types of a treasure hunt:
i) It is buried after the emergence of Islam e.g signs
of Islamic symbol.
ii) It is buried before the emergence of Islam e.g the
picture of statue and etc.
10
Jurists opinion in mineral (ma’adin):
1) Ulama Miliki – the mineral should belong to the
government. Public interest.
-2)Mazhab Hambali and Shafie, if the mineral is
found by an individual and great effort is required to
acquire it, the property must be given to the
individual.
11
Jurists opinion in a treasure hunt (rikaz):

1) For rikaz which belongs to Muslim, most jurists
have the opinion that it falls under mal al-luqatah
(missing property). Must find the owner first. If it is
not claimed by anyone, the rikaz can be donated to
the poor or be given to Bay al-mal.
2) For rikaz which belongs to non-Muslim, 1/5 must
be given to bay al-mal where the rest belongs to the
owner of the land.
12
 d) Al-Kala’ wa Ajam:
The grass on the field.
According to the Prophet Muhammad SAW:
“Human shares 3 things; fire, water and grass on

the field.”
• Must involve the valuable item (mal
mutaqawwam) and some situation needs an is
offer and acceptance.
• Types of contract:
a) Uqud al Tabarru’at (contract of gratuity) e.g

hibah and wasiyah
a) Uqud al Mu’awadat (contract of exchange) e.g

contracts of al-buyu’
14
 The heirs entitle the asset of the decease
through fara’id system.
 The heir could also obtain the asset through
wasiah.
 The heir could entitle the asset without to go
through offer and acceptance activity but the

heir is responsible to pay all the decease’s
liabilities such as debts and wasiyyah (only
1/3 of his total assets).
15
- e.g insurance, diyat
16
 Literally, al-syuf’ah means amalgamation, addition,
sub junction or joining. It implies that a partner or co
owner amalgamates his partner’s share with his own
share; or he adds his partner’s share to his property.
 Legally, al-syuf’ah implies that a co-owner has the
right to demand a pre-emption from his partner in a

jointly owned property to purchase it at a certain
price, before other people.
 In other words, al-syuf’ah is the right to substitute
oneself for the buyer in a completed sale of real

property. It is granted by law and such rights cannot
be bought.
Refers to the ownership of only the object (ayn) or
only the benefit (manfaat).
Characteristics:
a)No absolute control over the property concerned
b)The ownership is not transferable
c)The manfaah owner is the trustee which liable for
any damage.
d)The ownership is restricted to a certain time limit –
only up to expiry date.
18
 1. Milk al’ayn – refers to the object but not the
manfaah. Examples : owing a house or a piece of land
which is leased or mortgaged or bequeathed.
 2. Milk al Manfaah (haq al-intifa’ al-syakhsi) – refers to
the ownership of the benefit but not the physical form
of the property.
 Milk al Manfaah can be acquired through borrowing,
waqaf, wasiah, leasing and ibahah.
 It could be in the form of right (haq) for immovable
property, eg land and house (aqar) for immovable
benefits by second party (other than the owner of the
property).
19
 3. Huquq al-irtifaq:- ownership of benefit
that is shared by the public.
 There are five types of huquq al-irtifaq:
 Haq al-Syurb (The right of drinking)

 Haq al-Majra (The right of watering)
 Haq al-Masil (The right to dispose)
 Haq al-Murur (The right to pass-by)
 Haq al-Jiwar (The right of neighbour
20
 Include the right to use water supply for
watering plants for certain period of time.
 Include the right for drinking of human and
animals.
 Types of water:-
a) General sources eg river
b) Exclusive source owned by someone eg river at

someone private land
c) Well or pond owned by someone
d) Water kept on special container and not owned
by someone
21
 The right of land owner where the land is
situated far from water sources
 The land owner can take the water from
sources situated at his neighbouring land.
22
 The right to dispose the waste (in form of
water) to the drain.
 The hukm is similar to haq al-Majra.
23
 The right of someone to pass-by the land.
 2 types:-
a) Land not owned by anyone – everyone has the

right to pass-by on the land
b) Land owned by someone – only the rightful
person can enter the land. However, should
there be anyone who want to pass-by the land,
they can seek permission and the owner
cannot prohibit him from entering.
24
 2 types of rights:-
1) The right to build building at the higher floor.
2) The right to expand the house to the right or
left of the existing bulding.
 Both rights can be exercised so long it does
not harm his neighbour.
25
1) Hak Irtifaq also on immovable property
(aqar) but Hak al-Syakhsi can be on aqar
or not
2) Hak Irtifaq is permanent right and can be
owned by few people but Hak al-Syakhsi
can be temporary right
26

3.0 CONCEPT OF AL-MILKIYAH-isb542-okt

Uploaded by

Copyright:

Available Formats

3.0 CONCEPT OF AL-MILKIYAH-isb542-okt

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

3.0 CONCEPT OF AL-MILKIYAH-isb542-okt

Uploaded by

Copyright:

Available Formats

PREPARED BY:

MADAM NORZITAH ABDUL KARIM

• According to Mejelle ( Sayuti & Qarafi):-

a)The property that is meant for the public.

a)Theproperty that could be owned but not

1) The property (ayn)

1) The benefit (manfaah).

The ownership is permanent and not restricted to

a)Ifthe owner destroyed the property or damage,

b) Al-Sayd (animal hunting):

•The animal that being caught from hunting

animal that was caught is your afford, it must

i. The capture has resulted the animal to be

Jurists opinion in a treasure hunt (rikaz):

The grass on the field.

According to the Prophet Muhammad SAW:

“Human shares 3 things; fire, water and grass on

a) Uqud al Tabarru’at (contract of gratuity) e.g

a) Uqud al Mu’awadat (contract of exchange) e.g

through offer and acceptance activity but the

right to demand a pre-emption from his partner in a

oneself for the buyer in a completed sale of real

 Haq al-Syurb (The right of drinking)

a) General sources eg river

b) Exclusive source owned by someone eg river at

sources situated at his neighbouring land.

a) Land not owned by anyone – everyone has the

not harm his neighbour.

You might also like