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It is fard also to pay ’ushr. The zakât
of production obtained from one’s land is termed ’Ushr. Even a
person in debt has to pay ’ushr.
Imâm-i-a’zam says: “When any kind of vegetable or fruit is
obtained from the earth, regardless of its amount, it is fard to give
one-tenth of it or its equivalent in gold or silver to poor Muslims.”
When the produce is obtained from land which is irrigated by
animal power, a waterwheel or machinery, one-twentieth of it is
given. Whether one-tenth or one-twentieth, it should be given
before deducting what is spent on animals, seeds, tools, fertilizer
chemicals and workers. ’Ushr is not paid for produce that is less
than one sâ’. Even if the owner of the land is a child, an insane
person or a slave, its ’ushr is to be paid. The state takes the ’ushr
by force from a person who will not pay his ’ushr. ’Ushr is not paid
for the fruit and vegetable in the yard of one’s house or for
firewood, grass or hay, no matter how abundant they are. For
honey, [even if there has been an expenditure on such things as
engineering outfits], for cotton, for tea, for tobacco, for fruit
obtained from trees in fields, [such as olives, grapes], one-tenth is
paid as ’ushr. There is no ’ushr for pitch, petroleum or salt. [See the
second one of the four treasuries of the Beytulmâl later ahead.] It
is harâm to eat the produce the ’ushr of which has not been paid.
It is necessary to pay its ’ushr even after having eaten it.
Ibni ’Âbidîn[1] says: “The ’ushr of fruit and grain, according to
Imâm-i-a’zam and Imâm-i-Zufer, becomes fard when they have
been formed on the stem and while they are still secure from
rotting off. Even if they are not ready for reaping, the ’ushr should
be paid when they are ripe enough to utilize, to eat. According to
Imâm-i-Abû Yûsuf, when they ripen it becomes fard (to pay ’ushr
for them) before the harvest. And according to Imâm-iMuhammad it becomes fard after the harvest, that is, after all of
them have been reaped and gathered. It is permissible to pick some
[1] Sayyid Muhammad Emîn bin ’Umar bin ’Abd-ul-’Azîz ‘rahmatullâhi
ta’âlâ ’alaih’, (1198 [1784 A.D.] – 1252 [1836], Damascus,) wrote a
book of five volumes as an annotation to the book Durr-ul-mukhtâr,
by Alâuddîn Haskafî ‘rahmatullâhi ta’âlâ ’alaih’, (1021, Haskaf –
1088 [1677],) and entitled it Radd-ul-muhtâr. When title Ibni ’Âbidîn
is mentioned, either that valuable scholar, Sayyid Muhammad Emîn,
or his annotation, Radd-ul-muhtâr, is meant. Radd-ul-muhtâr is the
most dependable book of Fiqh in the Hanafî Madhhab.
off their stems and eat them or to give them to someone else to eat
before the harvest. But according to Imâm-i-a’zam their ’ushr also
has to be paid, which is not necessary according to the two imâms.
But they are included in the calculation, which is done to see if the
produce is (at least) the amount of five wesks. If one picks them off
after they have ripened, their ’ushr is still not necessary according
to Imâm-i-Muhammad. After the completion of the harvest, the
’ushr of destroyed or stolen amount is not to be paid.” The poor
should calculate and pay their ’ushr according to the two imâms.
Those who are rich should pay it according to Imâm-i-a’zam.
It is written in the two hundred and twenty-fifth page of the
book Imâd-ul-Islâm[1]: “Whether from a cultivated field or from an
orchard or vineyard, it is harâm to eat the produce before paying
one-tenth of it to poor Muslims. If one measures the quantity one
has taken out and eaten and then calculates and pays the ’ushr of
what one has eaten, then what one has eaten becomes halâl.
If a person who has gathered ten bushels of wheat does not give
one bushel (36 1/2 kg) of it to a poor Muslim, not only that one
bushel but also all of the ten bushels will be harâm. If a person tills
someone else’s land and obtains crops without the latter’s consent,
of the produce he gets only the amount equal to his expense and
capital becomes halâl for him, and the rest is harâm; he has to give
the rest to the poor as alms.”
According to Imâm-i-Yûsuf and Imâm-i-Muhammad, to pay
the ’ushr, the produce obtained from the land has to be of the kind
and quality that will last one year and its amount has to be more
than five wesks. One wesk means a camel-load, which is a volume
of sixty sa’. Sixty sa’ is two hundred and fifty litres. Accordingly,
the two imâms state that the nisâb of ’ushr is twelve hundred and
fifty litres. But the fatwâ has been given in agreement with the
ijtihâd of Imâm-i-a’zam.
Ibni ’Âbidîn states in the two hundred and fifty-fourth page of
the third volume: “If the inhabitants of a city become Muslims
voluntarily or if Muslims capture the city by force and one-fifth of
the land is reserved and the remainder is dealt out to the soldiers or
to other Muslims, such plots of land become property of those who
take them, and it is fard to pay the ’ushr of the produce of this land.
’Ushr is not taken for land that has been captured by force and
given to disbelievers or which has been taken by peaceful means
[1] Turkish version of ’Umdat-ul-Islâm rendered by ’Abd-ur-Rahmân
bin Yûsuf.
and still belongs to disbelievers. Kharâj is taken for such land areas.
[’Ushr and kharâj are spent for purposes different from each
other.] Kharâj is taken for the lands of Iraq, Syria, and Egypt, with
the exception of Basra.” It is written in the fifty-second page of the
second volume: “Even if the owner of a land of kharâj donates or
sells it to a Muslim, still kharâj is to be paid from the produce.” It
is written in Majmû’a-i-jadîda: “It is permissible for a zimmî to
donate his real estate to a pious foundation by stipulating that its
rentals should be given to poor Muslims.” And it is written in the
two hundred and fifty-fifth page of the third volume of its
commentary: “When a zimmî[1] dies his inheritors still pay the
kharâj. If he has no inheritors the land left belongs to the Beytulmâl
and the kharâj falls, that is, it is not paid. If the state sells this land,
which is mîrî, or donates it as a waqf, the person (or foundation)
who gets it pays ’ushr, not kharâj.” The majority of Anatolian land
has became land of ’ushr through this policy. It is also written so in
the fiftieth page of the second volume. It is written in the fortyninth page of the second volume: “If a person donates his own land
of ’ushr, the person who tills the land gives the ’ushr.” It is written
in the fifty-fifth page: “If the state rents out the land belonging to
the Beytulmâl, the rental taken each year counts for kharâj. ’Ushr
is not taken in addition. For, ’ushr is not taken for land if kharâj is
taken for it.” If a person rents out his tenement of ’ushr, the owner
gives the ’ushr of the produce according to Imâm-i-a’zam. The
fatwâ is given in agreement with this at places where rentals are
high. Accçording to the two imâms the tenant gives the ’ushr. The
fatwâ is given accordingly at places where rental rates are low. No
one but the president of the state can sell the land belonging to the
Beytulmâl. If the owner of a tenement of kharâj becomes a Muslim
or donates the tenement to a waqf, its kharâj must still be paid. If a
tenement with ’ushr is bought by a zimmî, that is, a non-Muslim, the
tenement becomes land of kharâj. It is written in the two hundred
and sixty-fifth page of the third volume: “If the president of the
state donates the kharâj to the Muslim who is the owner of the
tenement, the owner uses it personally if he has due rights
demandable from the Beytulmâl.[2] If he does not have those rights,
[1] A non-Muslim who lives in a Muslim country.
[2] The Beyt-ul-mâl (or Bayt-ul-mâl) is the treasury of an Islamic
government. On pages ahead there is detailed information about the
Beyt-ul-mâl. By reading those pages, the readers will know what is
meant by “people who have due rights demandable from the Beytul-mâl.”
he gives it to someone who has the rights. If the president donates
the ’ushr it is not permissible. ’Ushr is not excusable by the state’s
revocation. In that case the owner of the tenement has to pay his
’ushr to those who have due rights demandable from the
Beytulmâl.”
It is written in the second volume: “Crops from land areas that
are not subject to kharâj or ’ushr, such as mountains and forests,
are to be counted as produces subject to ’ushr.” If one is sent some
presents by a land owner who one knows has not paid their ’ushr,
it is good for one to spare one-tenth of it, give it do the poor, and
then consume the remainder.
One of the commentaries to the superseded Land Laws, which
prescribed the management of the Beytulmâl, that is, the mîrî land
areas, is a book printed in 1319 [hijrî], by Ât›f Bey, who was a
teacher of the civil code in the school of political sciences. It is
written in its introductory section:
If a country is conquered by war, one-fifth of the land belongs
to the Beytulmâl. One of the following three cases may be applied
to the rest:
1 – It is divided and distributed to the soldiers or to other
Muslims. Such land areas become the property of these people.
Such land is taxed with ’ushr, which is collected yearly.
2 – The land is left to the disbelievers. Such land is taxed with
kharâj.
3 – The president of the state does not give the land to anyone,
but gives it to the Beytulmâl. Such land is also called mîrî land. If
the owner of land of ’ushr or of kharâj dies and if he has no heirs,
the land belongs to the Beytulmâl. It becomes mîrî land. It will be
sold or rented at a rate determined by the sultân (president of
state). Its themen (price) or rental becomes kharâj, that is, it is put
in the third part of Beytulmâl. Or, it is rented out to Muslim or
non-Muslim countrymen by legal deed, a certain percentage of the
produce being taken yearly as rent. The rent used to belong to the
soldiers and officers. The soldiers who had the right to take the
rents were called Timarci, and the officers were called Za’îm. The
soldiers’ land was called Timar, the officers’ land was called
Ze’âmet, and the generals’ land was termed Khâs. Abussu’ûd
Efendi, the Muftiyy-us-saqaleyn, wrote in his fatwâs, which exist in
the library of Nûr-i-Osmâniyye (in Istanbul): “One-tenth of the
produce, which is yearly paid with the sultân’s order to the
Timarcis by those who have rented the Beytulmâl’s mîrî land by
legal deed, has ordinarily been termed ’ushr; yet it is not ’ushr; it is
rent.” Later most of the mîrî lands were donated or sold to the
people by the State, in both of which cases it became land of ’ushr.
Thus almost all of the lands in Asia Minor and Rumelia became
land of ’ushr. As is seen, either one of the ’ushr and the kharâj
should be paid for the produce of land. Some people say and write
that the Anatolian land is not land of ’ushr. The fact, however, is
that there is no mîrî land in our country. Everybody’s fields and
gardens are their property, or they are tenants. It is fard for them
to pay the ’ushr of its produce.
During the Ottoman times there were five kinds of land areas:
1 – Of those land areas that were the people’s property, very
few were with kharâj and the great majority were with ’ushr. Land
that was the people’s property had four categories. The first
category comprised plots in a village or city and land areas
adjacent to a village and no larger than half a dönüm (about 0.116
acres). They had been mîrî land formerly and had been sold to the
people with the Caliph’s permission later. Or they were land areas
with ’ushr or with kharâj. In the second category were those mîrî
areas and fields that had been sold to the people with the Caliph’s
permission. ’Ushr was paid from their income. The third category
was those land areas with ’ushr and the fourth consisted of those
with kharâj.
The owner of any of these four kinds of land could sell it. He
could bequeath it, too. It would be divided and distributed to his
inheritors as prescribed by the knowledge of Farâid (the branch of
Islamic Science that deals with inheritance).[1] On the other hand,
if a person had been using a land area in the category of mîrî
because he had been given its legal deed and had been paying its
rent; when this person died his inheritors could not divide it among
themselves or sell it. He could not will this type of land to be sold
or have his debts to be paid out of the money received for its sale.
The land would not belong to his inheritors. It would not be
included in the nisâb for Qurbân, either. Nor could it be sold.
Only, it could be transferred to someone else in return for money
with the permission of the owner of Timâr. A person who had
rented the mîrî land could sow anything or let someone else use
the land in return for rent. Any land area left uncultivated for
three years would be rented out to someone else. The tenant
farmer could not plant trees or vines on the mîrî land without
[1] Please see the twenty-third chapter.
permission. He could not build a house there without permission,
either. Nor could a dead person be buried there. The mîrî land
would not become the property of the person who had rented it by
legal deed. Such people were only tenants. It was customary that
when the tenant farmer died the land would be rented to his
inheritor. This was not the inheritor’s right prescribed by the
Sharî’a, but was a gift by the State. Please see the final part of the
twenty-third chapter.
2 – Beytulmâl’s land areas, i.e. mîrî land. Most of the country’s
land was so and was rented out. Later most of such land areas were
sold to the people, and became land of ’ushr.
3 – Areas of Waqf, whose produce was subject to ’ushr.
4 – Open spaces of ground, fields and the like that were made
public.
5 – Areas that belonged to neither the Beytulmâl nor anyone
else, such as mountains and forests; Muslims who cultivated them
would give the ’ushr of the produce.
Endless Bliss
