ASSIGNMENT

Transfer of Property Act-I

Submitted by: Murtaza Hassan

Reg.# 4303-FSL/LLB/F15

Submitted to: Sir Sohaib Mukhtar

Faculty: Shariah & Law

International Islamic University, Islamabad

1
Definition of Property:
Definition of Property according to Article 260 of The Constitution of Islamic
Republic of Pakistan, 1973;
Property includes any right, title, or interest in property, movable or immovable and any means
and instruments of production.

Classification of Property:-
Property is classified into following;

i) Fungible Property
ii) Non-fungible Property
iii) Tangible Property
iv) Intangible Property
v) Movable Property
vi) Immovable Property

*Fungible Property:-

Property which can be measured, counted or weighted e.g. Oil, money etc.

*Non-fungible Property:-

Property which can not be measured, counted or weighted e.g. trade mark,
intellectual property etc.

*Fungible property is further classified into two types;

i) Tangible Property:-

Property which can be touched, measured.

ii) Intangible Property:-

Property which can not be touched or measured e.g. trade mark or intellectual property.

Tangible Property is further classified into;

i) Movable Property:-
Movable property is that property which can be moved from one place to another
place e.g. Car, bike, etc.
ii) Immovable Property:-

2
 Immovable property is that property which can not be moved from one place to
another place, and which is attached to the earth or attached to what is attached
to the earth.

But there are four exceptions of immovable property as per Section 2 of The Registration Act
1908;

i) Standing timber,
ii) Standing crop,
iii) Fruits upon trees,
iv) Attached machinery with the earth which is used for agricultural purposes.

Provision as to property as laid down in The Constitution of Islamic Republic of

Pakistan, 1973;

Article # 23.
Every citizen shall have the right to acquire, hold and dispose of property in any part of
Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the
public interest.

Article # 24. Protection of property rights;

(1) No person shall be deprived of his property save in accordance with law.

(2) No property shall be compulsorily acquired or taken possession of save for a public purpose,
and save by the authority of law which provides for compensation therefor and either fixes the
amount of compensation or specifies the principles on and the manner in which compensation
is to be determined and given.

(3) Nothing in this Article shall affect the validity of—

(a) any law permitting the compulsory acquisition or taking possession of any property for
preventing danger to life, property or public health; or

(b) any law permitting the taking over of any property which has been acquired by, or come
into the possession of, any person by any unfair means, or in any manner, contrary to law; or

(c) any law relating to the acquisition, administration or disposal of any property which is or is
deemed to be enemy property or evacuee property under any law (not being property which
has ceased to be evacuee property under any law); or

3
(d) any law providing for the taking over of the management of any property by the State for a
limited period, either in the public interest or in order to secure the proper management of the
property, or for the benefit of its owner; or

(e) any law providing for the acquisition of any class of property for the purpose of—

(i) providing education and medical aid to all or any specified class of citizens; or

(ii) providing housing and public facilities and services such as roads, water supply, sewerage,
gas and electric power to all or any specified class of citizens; or

(iii)providing maintenance to those who, on account of unemployment, sickness, infirmity or

old age, are unable to maintain themselves; or

(f) any existing law or any law made in pursuance of Article 253.

(4) The adequacy or otherwise of any compensation provided for by any such law as is referred
to in this Article, or determined in pursuance thereof, shall not be called in question in any

court .
Article 172. Ownerless property (1) Any property which has no rightful owner shall, if
located in a Province, vest in the Government of that Province, and in every other case, in the
Federal Government.

(2) All lands, minerals and other things of value within the continental shelf or underlying the
ocean 1[beyond] the territorial waters of Pakistan shall vest in the Federal Government.

2[(3) Subject to the existing commitments and obligations, mineral oil and natural gas within
the Province or the territorial water adjacent thereto shall vest jointly and equally in that
Province and the Federal Government.]

Article 173. Power to acquire property and to make contracts, etc. (1) The
executive authority of the Federation and of a Province shall extend, subject to any Act of the
appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in,
and to the purchase or acquisition of property on behalf of, the Federal Government or, as the
case may be, the Provincial Government, and to the making of contracts.

(2) All property acquired for the purposes of the Federation or of a Province shall vest in the
Federal Government or, as the case may be, in the Provincial Government.

(3) All contracts made in the exercise of the executive authority of the Federation or of a
Province shall be expressed to be made in the name of the President or, as the case may be, the

4
Governor of the Province, and all such contracts and all assurances of property made in the
exercise of that authority shall be executed on behalf of the President or Governor by such
persons and in such manner as he may direct or authorize.

(4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of
any contract or assurance made or executed in the exercise of the executive authority of the
Federation or, on behalf of any of them be as the case may be, the Province, nor shall any
person making or executing any such contract or assurance personally liable in respect thereof.

(5) Transfer of land

by the Federal Government or a Provincial Government shall be regulated by law.

Maximum limits as to property, etc.

Article 253. (1) [Majlis-e-Shoora (Parliament)] may by law—

(a) prescribe the maximum limits as to property or any class thereof which may be owned, held,
possessed or controlled by any person; and

(b) declare that any trade, business, industry or service specified in such law shall be carried on
or owned, to the exclusion, complete or partial, of other persons, by the Federal Government
or a Provincial Government, or by a corporation controlled by any such Government.

(2) Any law which permits a person to own beneficially or possess beneficially an area of land
greater than that which, immediately before the commencing day, he could have lawfully
owned beneficially or possessed beneficially shall be invalid.

Property and Ownership in Islam

Property al-mal, is defined by Hanafis as any good that individual like naturally, and can save for
some time.

Whereas Non-Hanafis defines it as anything with a value according to which it may be sold, and
for which a transgressor should compensate the owner.

The Hanafis definition of property renders usufruct non-properties. Contrary to Hanafis,

definition of the Non-Hanafis also signifies an exclusive association of an item with an owner
who has the right to deal in it in all manners provided that there is no legal impediment to it.

In other hands, ownership (al-malkiyyah) ia an Islamic legal term which signifies the relationship
between a human being and property which renders the property specifically attached to him,
hence, giving the owner the right to deal in that property unless there is a legal impediment

5
preventing him from such dealing.

Al-Zuhaily defines owned property as ‘’anything owned by a human being be it a specified

property, or usufruct of a property.’’

In the light of this defination the Hanafis consider usufruct and legal right as owned item and
not as property, hence, rendering ownership a more general concept than property.

Certainly, all property is ultimately owned by ALLAH (swt) as stated in The Holy Qiran: “To Allah
does belong the dominion of the heaven and the earth and all that is there in.” (Quran, 5:20)

Thus, human being ownership of the property is a metaphorical one, for he is a trustee and
vice-gerent in charge of the property.

Urwah(a companion of Holy Prophet pbuh) said:”i bear witness that i heard Messenger of Allah
saying that all land belongs to ALLAH and all humans are slaves of ALLAH, and that whoever,
claims wasteland is most worthy of owning it’’. Therefore, one must obey the order of ALLAH in
all dealing related to his property, since ALLAH ALMIGHTY is the ultimate owner of all property
that is made available for human utilization. Hence, humans are equally given the divine gift of
the right to hold private property. However, one must bear in mind that property does not
constitute the end itself but it is the means of satisfying the needs and wants of humans.

There are certain properties that can not be owned privately and they are categorized as
Social Properties.

Social property consists of three types which are:-

1) Public property providing social service,

the example for which are, mosques, schools, rivers, roads, charitable mortmain
waqf and other related things if not made public would not serve their purpose.
2) Property that exists naturally and without human intervention,
It consists things, such as mineral, crude oil, rock, water, grass and fire. This type of
property is created by Allah solely.

According to Malikis, all mineral should be considered as state property and should be used for
public purposes, whereas, Hanbalis, hold only the easily accessible as state property. On the
other hand, they considered solid minerals that require mining, as private property owned by the
owner of the land within which they are found. The Hanafis too give a big share to the state in
most type of minerals.

3) Property under state control/supervision:

Lost and found property that reaches the Muslim treasury, and for which no hair can
be found,

6
Is the first category of this sort of public property. This is based on the rulling that ‘the Muslim
treasury is the inheritor of every one who has no hair’.

The second category includes agricultural lands owned like minerals. Whoever control such
land is not consdered to own it completely, but only to own its usufruct. As most of the land
owned by muslim treasury to this category the state can be justified in confiscating it when
necessary. However, the state in doing so should fairly compensate the land owners.

Conclusion:-

An attribute, quality or characteristic of something. The ownership of a thing in the right of

one or more persons to possess and use it to the exclusion of others. In this way, the things
of which there may be ownership is property. According to Muslim Faith, all the property
belongs to ALLAH ALMIGHTY and people are entitled to utilize it for their purposes.