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6th Fiqhi Seminar

Date: 31 Dec. 1993 - 3 January 1994 Venue: Omerabad

Sixth Seminar of the Islamic Fiqh Academy was held at Omarabad (North Arcot District, Tamil Nadu) from December 31, 1993 to January 3, 1994, hosted by the Jamia Dar-us-Salam, Omarabad of which Kaka Sayeed Umri is the Secretary. The participants, comprising Ulama representing esteemed Seminaries and belonging to all schools of thought, intellectuals and economic experts, from all parts of India, numbered over two hundred. Dr. Mohammad Habib bin Al-Khowjah, Secretary, Islamic Fiqh Academy, Jaddah (Saudi Arabia) and Mufti Abdul Rahman of Bangladesh were the guest invitees.

The issues discussed at the Seminar were ‘Ushr and Khiraj. After detailed and thread-bare deliberations and discussions the Seminar arrived at the following conclusions.

 Ushri Lands

  1. Those lands, whose owners voluntarily embraced Islam before the conquest of those territtories by Muslims.
  2. The lands in a conquered territory which have been distributed among Muslims by the State.
  3. Lands granted to Muslims by a Muslim government as Jagir.
  4. All the lands in the Arabian Peninsula which have already been demarcated as such by early jurists.
  5. House-site lands converted into agricultural lands while adjoining lands are also Ushri.
  6. All such fallow lands in a Muslim country which have been made cultivable by a Muslim, while adjoining lands are already ‘Ushri lands.

Following types of lands fall in the category of Khiraji lands:

  1. Land in a conquered teritory which have been left in the possession of local non-Muslims.
  2. Lands of a town the non-Muslim people whereof have made truce with the Muslim government and have been allowd to retain possession thereof.
  3. Lands of Muslims which go over into the ownership of non-Muslims and later return to the possession of Muslims.
  4. The lands granted by a Muslim government as Jagir to non-Muslims.

As a broad principle the shariah has placed all lands possessed by Muslims in the category of ‘Ushri’ lands and those in possession of non-Muslims as Khiraji. However, because the ‘Ushra is a type of ‘Ibadat (act of worship) and is, in its essence, a kind of Zakat, as far as Muslims are concerned all their agriculatural lands are, basically, to be treated as ‘ushri lands as abrogating ‘ushr would tantamount to abrogation of an act of ‘Ibadat. Hence, unless there is a clear authority of Quran or Sunnah to take any land out of the category of ‘ushri land the prudent course would be to classify all lands in Muslims’ possession as ‘Ushri lands.

Keeping in view these unanimous opinions on ‘Ushri and the existing political set-up in India, the Seminar, in respect of the status of lands in India according to Shariah, arrived at the following.

 Conclusions:

  1. It is incorrect to hold that all lands in possession of Muslims in India are neither liable for ‘Ushr nor for Khiraj.
  2. Lands in India falling in the following categories are as per consensus, ‘Ushri lands.
    1. Lands granted to Muslims by a Muslim government which continue to be in possession of Muslims.
    2. Lands in those regions the people whereof voluntarily embraced Islam even before the establishment of Muslims’ rule there.
    3. Lands in possession of Muslims since a considerably long time and there being no historical evidence of those having ever been Khiraji lands.
    4. Those cultivated or fallow lands which are given to Muslims by the Government of India. However, in view of some, such lands will be treated as Khiraji lands.
  3. There is a difference of opinion in respect of lands obtained by Muslims either from a non-Muslim Government or from a non-Muslim individual. Some of the participants of the Seminar hold that all lands in the hands of Muslims in India, irrespective of their origion, are ‘Ushri lands while others hold that the same must be treated as Khiraji lands.

However, it is commonly agreed that as a matter of abundant caution all lands should be treated as subjected to ‘Ushr.

Method of Payment of Khiraj and Adjusting it Against the Government Revenue:

  1. Some participants of the Seminar hold the view that the obligation to pay Khiraj terminates after paying the land revenue (Cess) to the Government.

    Some others are of the opinion that Khiraj is, in any event, obligatory on all khiraji lands in India. They hold that payment of land revenue to the Government does not absolve the land owner of the obligation of Khiraj, and it is incumbent on a Muslim land-owner to separate the due quantum from the total product and spent it on the prescribed heads of Khiraj.

    Still others opine that the land revenue paid should be adjusted against the due Khiraj and the balance be spent as Khiraj.

     
  2. On the question whether Khiraj-e-muqasima will be due on Khiraji lands in India, or the Khiraj-e-muazzaf, some participants of the Seminar, for the sake of convenience, favour the Khiraj-e-muqasima on all Khiraji lands.

    But those participants who are inclined towards holding Khiraj as obligation in all events, hold that on all such lands in respect of which it is historically established that after their conquest by Muslims. Khiraj-e-muqasima was levied (as in Gujarat and Rajputana), Khiraj-e-mudqasima will have to be paid, and the quantum would be the same as was initially levied. In respect of all other Khiraji lands, Khiraj-e-muazzaf will be leviable.

     
  3. Those favouring Khiraj as obligatory in all cases, make tauzeef-e-Umri as the basis and thereby fix one (silver) dirham in cash per jareeb (i.e. equal to 3 masha of silver, or its value) and one sa’ (Three Kilograms and 325 grams) of the product on Khiraji lands producing usual crops like grains and cotton.

    On vegetable-growing lands, they fix 5 silver dirhams (or its equivalent currency in use) per jareeb, 10 silver dirhams or its equivalent, in cash per jareeb, on lands adjoining the grape or date groves.

On Produce of Ushri Lands, Trees and Vegetables:

Like Zakat, payment of Ushr is also a religious obligation which relates to produce from lands. The Holy Qur’an has enjoined upon Muslims to pay Zakat out of their clean, lawful earning and to pay Ushr out of the produce on obtains from the lands (O! you who believe, spend out of your clean and lawful earning and out of what you get from the lands -2 : 26)

On whether ‘Ushr is due on all the produce of lands or some produce are exempted, after studying the general instructions found in the Qur’an and Hadith in the matter and considering the papers presented and views put forth by the participants, the committee arrived at the following.

Conclusions:

  1. That ‘Ushr will be leviable on every produce, including grass and trees, which is grown for the purpose of trade and for developing the land. Hence all grains, fruits and flowers grown on a land are liable for ‘Ushr. However, the self-grown (wild) grass and trees, not grown with the intention of trade, will be exempted from the liability of ‘Ushr.
  2. Such non-fruit bearing trees, the timber of which is used as fuel or for making furniture or used in the construction of houses, like Sanoobar, Sheesham, Sagwan, Sakhu etc. for the growing of which an ‘Ushri land is set apart and are meant for trade, will be liable for ‘Ushr, either in kind or cash, at the time of their being put to such a use, howsoever long it may take.
  3. Vegetables grown for trade in an ‘Ushri land. However, vegetables grown in the courtyard or in fallow adjoining lands or on the roofs of houses are exempt from liability of ‘Ushr.

Ushr on lands under tenancy

In case the landlord and tenent both are Muslims, both will be liable to pay ‘Ushr on the produce coming to their respective shares.

  1. In case the landlord is a Muslim and the tenant a non-Muslim, the Muslim landlord will have to pay ‘Ushr on the total produce falling to his share.

Deduction of expenses for determining the Nisab

  1. The extra expenses incurred through employing modern means like the use of fertilizers and insecticides etc. should not be deducted from the (cost of) total produce obtained.
  2. According to Imam Abu Hanifa and some other Muslim jurists, considering the generality of certain ayaat (verses) of the Qur’an and some Traditions of the Prophet, there is no nisab (exemption limit) for payment of ‘Ushr on agriculatural produce. Ushr will be payable on everything produced from the land, irrespective of its quantity. However, Imam Abu Yusuf. Imam Mohammad and a majority of other jurists, relying on a Prophet’s reported saying, hold that there will be no liability of paying Ushr if the total produce is less than 5 (five) wasqs. The Seminar is also of the view that placing the liability of ‘Ushr in all cases will be hard on small land-owners or in case of the crop getting damaged because of some natural calamity, therefore following the view propounded by Imam Abu Yusuf and Imam Mohammad (Sahibain) and other jurists, it is held that in case the produce be less than 5 (five) wasqs i.e. less than six quintals and 53 kilograms), it will be permissible for the land-owner to himself consume the entire produce without paying the ‘Ushr (one-tenth). Some participants, however, expressed the view that this may be acceptable only if the produce is less than nisab and the person concerned has no other means of sustenance.

Ushr on Fish, Makhana, Silk etc.

Things cultivated within water e.g. Makhana, singhada (water chestnut) etc are akin to land produce as they cause Istighlal-e-ard, hence these are liable for ‘Ushr.

  1. Fish-breeding done for commercial purposes does not fall in the category of land produce but comes under the classification of commercial commodity. Therefore, these will not be liable for Ushr but zakat will be payable on the same.
  2. In case shehtoot (Mulberry) is grown on an’Ushri land for the purpose of extracting silk therewith and the Mublerry leaves are used as food for the silkworms, it is held that ‘Ushr will be liable on such Mulberry leaves. Some participants are, however, of the view that such Mulberry leaves will not be liable for Ushr but Zakat will be leviable on the silk obtained therefrom, like in the case of other commodities liable for zakat.

Ushr on the Fruits and vegetables grown in courtyard ...

Ushr on the Fruits and begetables grown in courtyard, roof-top, adjoining lands and on Waqf lands

  1. As the liability to pay ‘Ushr accrues only when a land is in itself an ‘Ushri land, and the land on which a house stands is neither an ‘Ushri nor Khiraji land, hence the vegetable and fruits etc. grown in the courtyard, on roof-top or on the fallow land surrounding the houses, will not be liable for ‘Ushr.
  2. As, for the liability to pay ‘Ushr, it is not necessary that a person should actually own the land, Ushr becomes liable on the produce of the land even if not in the ownership of one, further, ‘Ushr is leviable on the produce and not on the land as such. Therefore, the produce of a waqf land, be it a general waqf or waqf-alal-aulad, will be liable for ‘Ushr.

Islamic Banking and Share

As per orders of the Reserve Bank, all financial institutions and Banks are compulsorily required to invest 5% (five percent) of their total capital in interest-bearing government bonds/securities. Therefore, it would be proper to allow the interest thus accrued to be accumulated and proportionately withdraw the amount invested in interest-bearing bond/ securities making the accrued interest to gradually replace the deposited capital.

  1. An Islamic financial institution or Muslims in general can purchase equity shares of such companies which do purely halal business.
  2. Investing in shares of such companies as undertake soley haram business is totally impermissible.
  3. As regards various other issues concerning banking and shares put up in the Seminar, the Seminar directs the Islamic Fiqh Academy of India to call a special meeting of the Ulama and experts to go through in detail over all such issues and arrive at a final conclusion.

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