SALE, MORTGAGE, LEASE & GIFT: ANALYTICAL, COMPARATIVE & CASE LAW STUDY IN THE LIGHT OF SHARIAH AND

TRANSFER OF PROPERTY ACT 1882

Synopsis and Research Proposal for Ph.D. in Shariah (Islamic Law and Jurisprudence)

SUBMITTED BY Naureen Akhtar 22/PhD-IJ/11 Reg # 22/FSL/PhD IJ/F11

SUPERVISED BY Dr. Muhammad Tahir Mansoori Chairman Shariah Academy

FACULTY OF SHARIAH & LAW INTERNATIONAL ISLAMIC UNIVERSITY ISLAMABAD

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CONTENTS

1. THESIS STATEMENT. 3 2. INTRODUCTION AND SIGNIFICANCE OF THE RESEARCH..3 3. STATEMENTS OF THE RESEARCH PROBLEM..20 4. HYPOTHESES OF THE RESEARCH21 5. OBJECTIVES OF THE RESEARCH.21 6. LITERATURE REVIEW.22 7. RESEARCH METHODOLOGY.30 8. TENTATIVE OUTLINE..32 9. BIBLIOGRAPHY..37

1. THESIS STATEMENT:
Present law governing transfer of property in Pakistan that is The Transfer of Property Act 1882 is in urgent need of scrutiny in the light of Shariah. This study seeks to examine Sale, Mortgage, Lease and Gift from Shariah Perspective in order to bring the Transfer of Property Act 1882 Shariah Compliant and Shariah Based.

2. INTRODUCTION AND SIGNIFICANCE OF THE RESEARCH:

Islamic law is the expression of Allahs commands for the Muslim society. Islamic law constitutes a system of rights which are privileges entitled to Muslims and duties which are incumbent upon a Muslim. Muslims are entitled to certain rights and bound to perform certain duties by virtue of their religious belief which is called as Shariah. Shariah literally means the right path or the clear path and technically it means the law which consists of divinely ordained path of conduct that guides the Muslims in this world and in the world hereafter. 1 Allah said in Holly Quran:

Kareem, Ahmad Mehmood, Mafhoom al-Shariah Al-Islamia, (Muassisa al-Ahram), 2013, p 1

Then We put thee on the (right) Way of Religion: so follow thou that (Way), and follow not the desires of those who know not. 2 Allah said in the Holly Quran:

To thee We sent the Scripture in truth, confirming the scripture that came before it, and guarding it in safety: so judge between them by what Allah hath revealed, and follow not their vain desires, diverging from the Truth that hath come to thee. To each among you have we prescribed a law and an open way. If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He hath given you: so strive as in a race in all virtues. The goal of you all is to Allah. it is He that will show you the truth of the matters in which ye dispute. 3 Shariah or Islamic law provides a separate legal system which is distinguished by certain peculiar characteristics that are not shared by any other legal system of the world. These characteristics include divine revelation, nobility of purpose, stability and permanence in principles and flexibility in application, the absence of difficulty and limitation of imposition.

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Surah Al-Jathiya: 18 Surah Al-Maidda: 48

These characteristics have allowed it to stability and growth and relevancy for the last fourteen centuries. Shariah has permanent and global character. Shariah or Islamic law is much broader in scope and much more complete than any other man made law. Islamic law covers all aspects of law covered by man-made positive law as well as other issues that such man-made laws do not touch upon. Islamic law is the broadest and most comprehensive system of legislation of the world. 4 Islam is a comprehensive system which covers the relationship of human beings with his creator that is Allah Almighty, with his fellow human beings and with his society and nation. It also deals with the relationship between nations during war and peace both. 5 Fiqh al-Muamalat is an important branch of Islamic law that regulates commercial relations among the members of Muslim society. The classical jurists have paid a great deal of attention to the field by devoting special chapters in their books on sale, mortgage, lease, gift, partnership, security, assignment of debt and other commercial transactions or contracts. They have discussed at great length the principles underlying these contracts. They have also identified disapproved business practices and unlawful modes of acquisition of property and disposition thereof. The aim of all these exercise is to enable a Muslim individual to practice Islam in his economic life and observe halal and haram in all his commercial activities. 6 Four theories run fiqh al Muamalat. First the theory of legal capacity, second the theory of property, third the theory of ownership and fourth the theory of contract. 7 This research work will focus on the theory of property.

Bashir, Abdul-Hameed Muhammad, Property Rights in Islam, Center for Middle Eastern Studies, Harward University, 1999, p 71 5 Ibid, p 72 6 Mansoori, Muhammad Tahir, Islamic Law of Contract and Business Transactions, (Islamabad: Shariah Academy), 3rd Edition 2005, p 2. 7 http://www.academia.edu (last visited: 18th July, 2013)

2.3 MAQASID SHARIAH AND PRESERVATION AND PROTECTION OF PROPERTY The injunctions of the Shariah are based upon one fundamental principle of the realization of best interest of man in this world and in the life hereafter.8 The aim of the Shariah is to preserve religion, life, intellect, progeny and property. These are the five basic interests of human being on the earth. They are also known as the Maqasid al Shariah or Objectives of Shariah. They are shown in the following figure:

Al-Allaf, Mashhad, Islamic Divine Law (Shariah) The Objectives (Maqasid) of the Islamic Divine Law or Maqasid Theory, p 1

Preservation of Property being one of the fundamental interests of man and a basic objective of the Shariah occupies a vital and significant place in Islamic legal philosophy. Islam regards the property of a person as sacred and inviolable as his life and honour. The Quran forbids the unlawful devouring of property by a believer. This includes prohibition against theft, usurpation, embezzlement, bribery and all other unlawful and impermissible means of acquiring wealth. The Quran also prohibits usurious transactions which bring undue and unjustified enrichment to one party at the cost other party. Thus the Quran and Sunnah embody some very basic and important rules with regard to property. The purpose of all such injunctions is to preserve property and the material wealth of the people. 9 2.4 NEED OF ISLAMIZATION OF TRANSFER OF PROPERTY ACT 1882 Pakistan is declared to be an Islamic state under Article 2 of Constitution of Pakistan 1973. Being an Islamic state Pakistan is required to make all laws in consistent with Islamic injunctions. In order to achieve the aim or objective of making laws of Islamic Republic of Pakistan, Council of Islamic Ideology was established under Article 228 of Constitution of Pakistan 1973. The primary aim or objective of Council of Islamic Ideology under Article 230 of Constitution of Pakistan is to make recommendation in order to bring the existing laws in conformity with the injunctions of Islam. So keeping in view the Islamic nature of state of Pakistan transfer of Property Act 1882 is strongly needed to be scrutinized in the light of Shariah to make it Shariah compliant and Shariah based. Today there is an earnest desire and persistent demand to scrutinize the laws in the light of Shariah. This study would therefore significantly contribute for investigating the Common
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Mansoori, Muhammad Tahir, Islamic Law of Contract and Business Transactions, (Islamabad: Shariah Academy), 3rd Edition 2005, p 1.

law as well as Islamic law approach in dealing with the issues of commercial transactions like sale, mortgage, lease and gift. This study would also lead towards paving the path for further research in the process of Islamization of Commercial laws of the state of Pakistan.

3. STATEMENTS OF THE PROBLEM:

The statements of the problem for this research work are: 1) Is there any difference between concept of property in Western and in Islamic legal thought? 2) Is the law on Contract of Sale in Transfer of Property Act 1882 of Pakistan is in compliance with Shariah injunctions on sale? 3) Is the law on Contract of Mortgage in Transfer of Property Act 1882 of Pakistan is in compliance with Shariah injunctions on Rahan? 4) Is the law on Contract of Lease in Transfer of Property Act 1882 of Pakistan is in compliance with Shariah injunctions on Ijarah? 5) Is the law on Contract of Gift in Transfer of Property Act 1882 of Pakistan is in compliance with Shariah injunctions on Hiba? 6) Is the law in Transfer of Property Act 1882 of Pakistan on Contract of Sale, Mortgage, Lease and Gift is strongly in need of scrutinization in the light of Shariah teachings? 7) To what extent the law on Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882 of Pakistan is compatible or incompatible with the teachings of Islamic Law? 8) What sort of amendments are required in Transfer of Property Act 1882 of Pakistan in the
law on Sale, Mortgage, Lease and Gift in order to make the law on these commercial transactions to be Shariah Compliant? 8

4. HYPOTHESIS OF THE RESEARCH:

The hypotheses of the research are: 1) The law relating to Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882 of Pakistan is completely in accordance with the injunctions of Shariah so there is no need to revive it in the light of Shariah. 2) The law relating to Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882 is in accordance with the injunctions of Shariah to a large extent and to a smaller extent it is violating the injunctions of Shariah so there is a need to revive it in the light of Shariah and to make certain amendments where necessary to make the law Shariah Complaint. 3) The law relating to Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882 is not in accordance with the injunctions of Shariah to a large extent and to a smaller extent it is complying the injunctions of Shariah so there is a need to revive it in the light of Shariah and to amend the whole law relating to Sale, Mortgage, Lease and Gift to make the law Shariah Complaint.

5. OBJECTIVES OF THE RESEARCH:

The Objectives of this research work are: 1) To study the law on Sale, Mortgage, Lease and Gift as enshrined or incorporated in Transfer of Property Act 1882 of Pakistan. 2) To examine the Sale, Mortgage, Lease and Gift of Transfer of Property Act 1882 from Shariah Perspective. 3) To study the Shariah rulings in detail on issues concerning Sale, Mortgage, Lease, Exchange and Gift. 4) To bring these transactions Shariah Compliant and Shariah based.

5) To utilize and apply current Muamalat principles and concepts to the above mentioned different transactions. 6) To apply theoretical principles of Muamalat in relevant areas. 7) To acquaint the people with correct law on those above mentioned variant commercial transactions. 8) To compare between Common Law approach and Shariah approach regarding Sale, Mortgage, Lease and Gift. 9) To propose necessary amendments in the law relating to Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882.

6. LITERATURE REVIEW
Although there are a number of books and various articles available on the subject of Sale, Mortgage, Lease and Gift from Common law perspective and Islamic Law perspective but these books and articles do not compare the law enshrined on sale, mortgage, lease and gift in Transfer of Property Act 1882 and the law relevant to the transactions in books on Islamic law. No writer analyzes the Sale, Mortgage, Lease and Gift in Transfer of Property Act 1882 from Shariah point of view. Some of the important writings in this connection are introduced here: 1) Commentaries on the Transfer of Property Act, 1882 by Kenworthy Brown and Commentaries on the Transfer of Property Act, 1882 by Sir Horatio Hale Shephard are in-depth yet highly readable volume which examines all the clauses of Transfer of Property Act 1882. Both of the above mentioned writers explained the law keeping in view the concepts incorporated in Common Legal System. While explaining different clauses of the Act some easy illustrations have been provided to make the concept clearer. To substantiate the view-point some land mark judgments have also been mentioned.
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2) Annual Report 1983-1984

The Council of Islamic Ideology. Pakistan. 17th session of The Council of Islamic Ideology was held on 17th to 27th July 1983 in Karachi, on 24 to 27th September 1983 in Islamabad, on 5th to 16th November 1983 in Islamabad and on 24th December 1983 to 2nd January 1984 in Karachi. A full board session was held in order to scrutinize the law on transfer of property that is Transfer of Property Act, 1882 of Pakistan. That session was chaired by Justice Dr. Tazil ur Rehman. Critical Analysis of the law on Transfer of Property was presented by Chief Research Officer of Council Hafiz Muhammad Latif Saleem. In the light of these precious comments the council made a report on Transfer of Property Act 1882. The Council analyse each and every clause of the Act and declared those clauses Non-Islamic which are in clear derogation of Islamic Injunctions on the respective subject. Some suggestions have also been made by the Council in order to make changes in the relevant law but it is in need of further research and suggestions so that the law can be Shariah based and Shariah complied. 3) Majallah al-Ahkaam Al Adliyya was the civil code of the Ottoman Caliphate. It is considered to be the first attempt to codify Islamic Law. It looks into the commercial laws in detail. In it the commercial laws were codified keeping in view the research methodology of Hanafi School of thought. In recent decades many research works have been undertaken to examine the provisions contained in Majallah and the extent of compatibility to the current civil codes of many Muslim countries. It is distinctive in codifying Islamic Commercial Law.

4) The Civil Code, The Arab Republic of Egypt elaborates the property matters with a title The classification of Things and Property. Article 81 to 88 of the Civil Code throws a

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light on moveable and immovable property. In Egyptian Civil Code the law on property is too short to grasp the vast concepts related to property. The legislation in the Arab Republic of Egypt is influenced by Civil legal System. 5) The Iranian Civil Code provides a stunning and fabulous example of codification of Islamic laws. Islamic law has been codified in it on the basis of Shia School of thought. Its a detail document comprised of 1335 Articles. The law on property has been incorporated in its first volume. Initially the concept of property and ownership has been discussed keeping in view the theory of Islamic legal thought. Afterwards the light has been thrown on elaboration of differences between ownership and possession. Significant work has also been done on explaining the relationship between property, ownership and possession. At the same place articles on rights and liabilities regarding property have been enshrined. Chapter 3 of Part 2 discusses special types of contracts. Article 338 to 463 of Iranian Civil Code is about Contract of Sale. Article 466 to 515 comprises of law on the contract of lease. The law on Contract of Mortgage is provided in Articles 771 to 794. The law on Contract of Gift is available in Articles 795 to 807. Although the provisions in Iranian Civil Code are based on Shia School of thought, even then it is a fabulous source of information on Islamic Commercial Law. It gives an immense idea about the Codification of Shariah in the field of Commercial law. 6) AL Duur Al-Mukhtaar is a splendid work on Hanifi School of thought by Muhammad Alla ud Din Al Haaskaafi. This book is present in 6 Volumes. Separate chapters have been devoted in this book to discuss the Shariah point of view on the contracts of sale, gift, mortgage and lease. In the streamline of discussion on Fiqh ul Muammalat the author of the book discussed contract of Sale firstly. In this chapter he explained different types of contracts like Iqala, Murabaha, Tawleeha, Qarz, Salam, Kafalah, Hawala etc. He also deals with the concept of Option in contract of sale. Secondly he explained the contract of Gift in a
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separate chapter. He started the chapter with a discussion on ways to revoke the contract of gift. He proceeded the discussion on contract of gift and explained the persons who cannot enter into contract of gift from Islamic point of view. In the end of this chapter he explained different prepositions on gift and gave fatwa according to Hanafi School of thought with arguments and evidences from Quran and Sunnah. Similarly he explained the contract of Mortgage in detail in a separate chapter. He expounded the opinion on mortgage and pledge. In the chapter on Contract of Lease he initiated the discussion with what is permissible in it. Then he explained Fasid Ijarah. In Shariah there are two types of lease i.e. of individuals and of commodities. 7) AL Mabsoot by Shams ud Din Abu Bakar Muhammad Bin Abi Sahaal Al Saraksi is shining work in Hanafi fiqh. He also devoted separate chapters on explaining the position of Shariah on the contracts of Sale, Mortgage, Lease and Gift. While searching the Islamic law on these different contracts he adopted the methodology of Madraasa al Fuqaha as it is founded by Imam Abu Hanifa. Imam Abu Hanifa laid down the principles of Islamic jurisprudence which are separate from principles laid down by Imam Shafi. The author of the book utilized the principles of this school of thought like Ibarat al Nass, Isharah al Nass, Iqtada al Nass and Dallallah al Nass while extracting Shariah Rulings from the transmitted texts. He explained the literal and technical meanings of different terms firstly. Then he focused on legitimacy of these contracts. In the end he gave fatwas on different prepositions regarding these contracts. He substantiated his point of view on any matter with proper and appropriate references from Holy Quran and Sunnah. While quoting hadith he traced the whole chain of transmitters in order to prove the authenticity of quoted hadith. 8) Al Umm by Imam Muhammad bin Idrees Al Shafi is amazing book on fiqh of Imam Shafi. This book has the speciality of being written by Imam Shafi himself. This is an exclusive book on Shafi School of thought. Imam Shafi was the founder of Madrassa AL
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Ulemma of Islamic Jurisprudence. He laid down his own principles for extracting the Shariah Rulings from transmitted texts. He was Mujtahidd Mutliq. He utilized the principles like Ishara al Nass, Ibarra Al Nass, Ieema, Mafhoom Mukhalif etc in order to explore the meanings of the words of transmitted texts. In this book he quoted the Ayah firstly. Then he extracted Shariah rulings from that particular Ayyah. Opinions of other Schools of thought are not provided in this book. This book is comprised of opinions of Imam Shafi exclusively. Imam Shafi also referred Hadiths where necessary to substantiate the extracted Shariah ruling from transmitted texts. Imam Shafi discussed Contract of Sale, Mortgage, lease and Gift and devoted separate chapter on each of them. 9) AL Majmoo Sharh Al Muhazzab by Imam Navavi is fabulous book. Imam Navavi belonged to Shafi School of Thought. In fact this book was the explanation of book tilted with Al Muhazzab which was written by Imam Sheraazi and Imam Sheraazi also belonged to Shafi School of Thought. In the introduction of this book Imam Navavi gave his research methodology which is matchless. Imam Navavi followed the principles of Shafi School of thought while extracting Shariah Rulings. He was Mujtahidd Fi AL Mazhabb. Firstly Imam Navavi quoted opinion of his own school of thought that is Shafi School of thought. He also referred the places where his school of thought differs from other Schools of Thoughts. He referred the reader to other books for more explanation and clarification on the point under discussion. He also traced the chain of narrators of Hadith to prove the authenticity of quoted Hadith. Following the research methodology of Shafi School of Thought he also dedicated separate chapters in his book to explain the position of his school of thought regarding these different types of contract. 10) Al Mudawaana Al Kubra by Imma Malik Bin Anas Bin Malik Bin Aamir Al Asbahi Al Madani is a marvellous work on fiqh of Maliki School of Thought. Among the students of Imam Malik two names were prominent. One of them was Imam Sahnoon and
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other was Imam Ibn Al Qasim. Ibn Al Qasim was one of those students of Imam Malik who learned fiqh of Imam Malik from himself. This book is in the form of question answer. Imam Sahnoon asked different questions from Ibn al Qasim and Ibn al Qasim answered the questions according to fiqh of Imam Malik. In this book opinions of other schools of thought are not available. It is exclusively on the fiqh of Imam Malik. Imam Malik was Mujtahid Mutlaq. He established his separate school of thought. Imam Sahnoon asked different

questions from Imam Ibn al Qasim on Contract of Sale, Mortgage, Lease and Gift. Imam Ibn al Qasim explored the opinion of Imam Malik with reference to these questions. In this way the fiqh of Imam Malik was codified in this book on these different commercial transactions. Imam Ibn al Qasim also referred Hadiths on the authority of which opinion of Imam Malik is based. 11) Bidaya Al Mujtahidd wa Nihaya al Muqtasid is a splendid book by Abu AL Waleed Muhammad Bin Ahmad Bin Muhammad Bin Ahmad Bin Rushd AL Qurtabi AL Undalssi. He is famous with the name of Ibn e Rusd. This book has the peculiar

characteristic of quoting opinions of four major Sunni Schools of Thought. After quoting the opinions of four Sunni Schools of Thought, he also mentioned the reason of their difference in opinion about any matter or on any issue. He also mentioned the arguments and evidences of different Schools of Thought on which the opinion of that particular School of Thought is based. 12) AL Iqnaa Fi Fiqh Al Imam Ahmad Bin Hanbal by Sharaaf Ud Din Mussa Bin Ahmad Bin Mussa Abu Al Hajjawi is a book on Fiqh of Imam Ahmad Bin Hanbal. The author of this book quoted the opinion of Hanbali School of thought while explaining the law on contract of sale, mortgage, lease and gift.

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13) Al Muamalat Al Muasarra Al Malia Fii Duu Al Fiqh Wa Al Shariah by Muhammad Ruwas Qila jaei is a contemporary book in the field of Islamic Commercial Law. In this book he explained many contemporary issues like Shariah rulings on shares and debentures, Position of Shariah on Stock Exchange, legitimacy of contracts like tawaruq, Bay al Innah etc. Besides that he illuminated the concept of Property according to Islamic Legal Thought. He gave the opinions of Four Sunni Schools Of Thoughts while presenting the definition of property. In the end he also gave the preferred opinion. He also focussed on types of property in Shariah. In the end of this chapter he gave Shariah Rulings on Property. 14) Property Law: Commentary & Materials by Alison Clarke and Paul Kohler explore the concept of property according to Western Legal Thought. He traced the history or origin of this concept in legal system. He presented and defended his opinion about what can be called as property. Afterwards he also gave criticism on the concept of famous authors like Jermy Benthem. So he expounded both the opinions as prevalent in Western Legal Thought about the property. 15) AL Mal: The Concept of Property In Islamic Legal Thought by Muhammad Wohidul Islam elaborates the discussions on Philosophical meaning of Mal, Juristic meaning of Mal, Attributes of Mal, Usufructs (Manafi) & Rights (Huquq) as Property(Mal). The author of this article summarized an important discussion among the Classical writers on Shariah on the topic of property. Its a significant contribution towards the existing knowledge as it is known that concepts of Shariah are in need to be reprod uced in other languages particularly in English in its true sense. He also made the cross references to the original books and writings in order to maintain the authenticity of this writing. This article is an important source of information for this research work.

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16) Property as legal Knowledge: Means & Ends by Annelise Riles is splendid writing in the field of law on property. The author of this article antimated both legal and anthropological theories about property. The discussion of the writer in the article leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means. 17) The Sociology of Property Rights by Bruce G. Carruthers & Laura Ariovich elaborates the five dimensions of property. Firstly which are the objects of property? Secondly which are the subjects of property? Thirdly the uses of property. Fourthly the enforcement of rights and lastly the transfer of property. This article answered some important questions related to property matters such as what can be owned as property. Who can own property? What can be done with the property? How property rules are maintained? How property moves between different owners? Furthermore this article offer examples of how property rights system vary along these dimensions and how they change over time. 18) Property Rights in Contemporary Islamic Economic Thought: A Critical Perspective by Sohrab Behdad deals with the Islamic theory of property and compared it with the theory propounded by Capitalism and Socialism. It presents the unique theoretical framework of Islamic law of Property. The author of the article emphasized on Allahs Ultimate ownership: the Root of the Dilemma and the Limitations on the Rights to Land and Capital. 19) Principles of Islamic Contract Law by Noor Muhammad is an effort to present briefly the controlling principles of Islamic Contract Law like prohibition of Riba, Prohibition of Gharar etc. The doctrinal basis of Islamic Law is the point of departure for this study. This article highlighted the importance of Shariah in Islamic society that it has the

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tendency to cover the entire spectrum of life. Shariah itself addresses t o Ibadat (Spirtual) matters as well as to the Muamalaat (temporal) transactions. Most of these books and articles explain the commercial transactions of sale, mortgage, lease and gift as enshrined or incorporated in Transfer of Property Act 1882 of Pakistan. Some excellent commentaries are available on Transfer of Property Act 1882. Similarly all the Muslim Jurist either classical or contemporary has discussed all these commercial transactions in their book respectively. They have devoted full chapters in their writings on explaining different aspects of these commercial transactions. But there is not a single comprehensive research work which point out the clauses of Transfer of Property Act 1882 which are repugnant to the injunctions of Islam regarding Sale, Mortgage, Lease and gift respectively and which proposes amendments in the law. There is need to conduct a comprehensive research work in order to remove the Shariah discrepancies from Transfer of Property Act 1882. . This research work will focus on the codification and compilation of the issues related to Sale, Mortgage, Lease and Gift. This research work will also focus on the preparation of a codified law on Sale, Mortgage, Lease and Gift which will be Shariah Compliant and Shariah based.

7. RESEARCH METHODOLOGY
1) The methodology of this research work would be descriptive, analytical, qualitative and comparative. In this research work the prevalent law in Pakistan on different commercial transactions would be described as it exist, therefore descriptive methodology of would be employed. After this the relevant law in Shariah on those commercial transactions would be described. After describing those transactions in law and Shariah, the critical analysis of those transactions would be done.
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Consequently the comparison would be drawn between Common Law and Shariah on those transactions. 2) Primary and secondary sources will be consulted for collection of data to focus on the research problems. 3) Rules of interpretation of laws according to Common law will be applied while analysing the transactions of Sale, Mortgage, Lease and Gift under Common Legal system. 4) Rules of interpretation of laws according to Shariah will be applied while analysing the transactions of Sale, Mortgage, Lease and Gift under Islamic Legal system. 5) The methods of istaqra, istambat and istadlal will be utilized to scrutinize the legal documents on the issue. 6) Case laws will be provided where necessary in order to substantiate the Common law approach on those transactions. 7) While analysing the transactions in the light of Shariah Opinions of four Suuni School of thoughts will be provided along with their arguments respectively. 8) After quoting opinions of four schools of thought the preferred opinion will be given keeping in view the rules of preferring according to Shariah. 9) Takreej of Hadiths will be performed wherever hadith will be quoted. 10) English translation of the Holy Quran will be adopted by Abdullah Yousuf or Muhammad Assad as far as the Holy Sunnah is concerned the translation will be written after consulting different translations and dictionaries. Proper translation is utilized for the Arabic terms by the Shariah.

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8. TENTATIVE OUTLINE
CHAPTER ONE: INTRODUCTION OF THE RESEARCH 1.1 Thesis statement 1.2 Introduction and Significance of the Research 1.3 Statements of the Problem 1.4 Hypothesis of the Research 1.5 Objectives of the Research 1.6 Literature Review 1.7 Research Methodology CHAPTER TWO: PHILOSOPHY OF PROPERTY IN WESTERN & ISLAMIC LEGAL THOUGHT 2.1 Concept of property and Ownership in Western Legal Thought 2.1.1 2.1.2 2.1.3 2.1.4 2.1.5 2.1.6 Notion of Property Ownership Subjects of the Property Objects of the Property Theories of Property Classifications of Property i) ii) 2.1.7 i) ii) iii) iv) Jura in Re Propria Jura in Re Aliena

Modes of Acquisition of Property

Possession Prescription Agreement Inheritance

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2.2 Concept of Ownership and Property in Shariah 2.2.1 i) ii) 2.2.2 i) ii) Property Ml in the Opinions of Jurists Classification of Property in Shariah Ownership

Subject-Matter of Ownership Types of Ownership 2.2.3 Modes of Acquisition of Property in Shariah

i. ii. iii. iv. v. vi.

Acquiring possession of Madin and Kunoz Hunting Transfer of Property Through Contract Inheritance Production of Property Compensation 2.2.4 Restrictions on the Rights of Property and Ownership

i. ii. iii.

Restrictions Related to Creation of Ownership Restrictions Related to Use of Ownership Restrictions Related to the Transfer of Property

2.3 Comparison

CHAPTER THREE: COMPARATIVE STUDY OF SALE IN THE LIGHT OF SHARIAH AND LAW 3.1 Concept of Sale in Transfer of Property Act 1882 3.1.1 Definition of Sale 3.1.2 Rights and Liabilities of Buyer and Seller
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3.1.3 Marshalling by Subsequent Purchaser 3.1.4 Discharge of Encumbrances on Sale 3.2 Concept of Sale in Islamic legal Thought 3.2.1 Definition of Contract of Sale 3.2.2 Legitimacy of Contract of Sale in Shariah 3.2.3 Elements of Contract of Sale 3.2.4 Conditions for the 3.2.5 Some Expressly Prohibited Sale Contracts in Islamic Law 3.2.6 Kinds of Sale Transactions 3.2.7 Shariah Rulings on Contract of Sale 3.3 Comparison.

CHAPTER FOUR: COMPARATIVE STUDY OF MORTGAGE IN THE LIGHT OF SHARIAH AND LAW 4.1 Concept of Mortgage in Transfer of Property Act 1882 4.1.1 Definition of Mortgage, Mortgagor, Mortgagee, Mortgage money and Mortgage deed 4.1.2 Kinds of Mortgage 4.1.3 Rights and Liabilities of Mortgagor 4.1.4 Rights and Liabilities of Mortgagee 4.1.5 Marshalling and Contribution 4.1.6 Redemption 4.1.7 Subrogation 4.1.8 Charges 4.2 Concept of Rahan in Islamic Legal Thought
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4.2.1 Definition of Rahan 4.2.2 Legitimacy of Contract of Rahan in Shariah 4.2.3 Elements of Contract of Rahan 4.2.4 Conditions of Contract of Rahan 4.2.5 Shariah Rulings on Contract of Rahan 4.3 Comparison CHAPTER FIVE: COMPARATIVE STUDY OF LEASE IN THE LIGHT OF SHARIAH AND LAW 5.1 Concept of Lease in Transfer of Property Act 1882 5.1.1 Definition of Lease, Lessor, Lessee, Premium and Rent 5.1.2 Rights and Liabilities of Lessor 5.1.3 Rights and Liabilities of Lessee 5.1.4 Determination of Lease 5.1.5 Wavier or Forfeiture 5.2 Concept of Ijarah (Lease) in Islamic Legal Thought 5.2.1 Definition of Ijarah 5.2.2 Elements of Contract of Ijarah 5.2.3 Conditions of Contract of Ijarah 5.2.4 Kinds of Ijarah 5.2.5 Shariah Rulings on Contract of Ijarah 5.3 Comparison

CHAPTER SIX: COMPARATIVE STUDY OF GIFT IN THE LIGHT OF SHARIAH AND LAW

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6.1 Concept of Gift in Transfer of Property Act 1882 6.1.1 Definition of Gift 6.1.2 Gift of Existing and Future Property 6.1.3 Suspension or Revocation of Gift 6.1.4 Onerous Gift 6.2 Concept of Hiba (Gift) in Islamic Legal Thought 6.2.1 Definition of Hiba (Gift) 6.2.2 Difference between Alms and gift 6.2.3 Characteristics of Hiba 6.2.4 Elements of contract of Hiba 6.2.5 Types of Hiba 6.2.6 Shariah Rulings on contract of Hiba 6.3 Comparison CHAPETR SEVEN: CONCLUSION & RECOMMENDATIONS

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9. BIBLIOGRAPHY BOOKS
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