Islamic law, being distinct with features of perpetuity and universality suits all the human being inspection of their time, place language and law & colour. It keeps pace with nature in organizing the victims a aspects of their lives. Islamic jurisprudence has passed through different stages starting from an independent opinion(______) ending with interpretations and annotations. Independent reasoning should emerge to uplift. The Muslim Ummah as there is strong relation between law & society. Human society requires law that regulates the rights of its members so that strong should transgress the weak law derived from the Quran & Sunnah enjoys the respect of the people more than any position law because faith rules their heart & because the mundane law is exposed to error and fault.
SOCIETY & THE REGULATION OF THE RIGHTS OF ITS MEMBERS: We. in the Muslim countries are badly in need of law based on Islamic teachings so that Custom between country man & law is materialized so that we may excel man made rules to the sublimity of rules originating from Divine source. The positive law emerges from social norms & custom which vary from nation to nation in accordance with this development whereas Islamic law does not emerge from ever changing habit and customs. It has come down by us from divine sources through revelation. Hence it is universal & all embracing covering all people who are equal so far as human rights are concerned., he can say that Islamic law is complete & fit for all times & space. It can solve all current as will as future problem.
In this dissertation , we shall discuss the topic of “Right of permanency & compare the efforts of jurists of Islam with those of the jurists of positive law. Our aim is to prove that the efforts of Islamic Jurists are more perfect & more useful for Muslim society as compared to those of the Jurists of positive law.
The topic of “Right of Permanency” is among the most imported topics of our time, we see that many people hire & lease their hands & assets for a pretty longer period & dealing with assignment of lease in prevailed in all countries for the sake of economical development. The former Jurists of Islam did not discuss this topic, the later once did not discuss it best not in totality. I, therefore, deemed it fit to write about it and scrutinized it.
The object behind writing about this topic.:
I intended to make up for all the observations for which I have criticized the previous writers to collect the relevant material spread over the various places, elucidate the ambiguities & exemplify them whenever necessary and arrange the topic in chapters and section so that different aspects of this topic are pieced together in a separate book.
METHODOLOGY:-It took me three months to read deeply various books in this topic, particularly the books of hanafaits school of thought such as Hashiya Ibn Abdin, Al-BAHR-AL-RAIO, AL-FATAWA AL-Hamidiyyah, Al-Hindiyyah, Al-Bazaziah, Wa AL-KHANIA and books of other school of thoughts like Fatawa SHAIKH ALISH Wa Al-SHARH AL-KABIR by DARDIR. I adopted the inductive method. I did not ignore the writings of traditionalize & the contemporary writers in this topic.
THE FIRST CHAPTER:Nature of Al-Hiser (Lease) and other matter relevant to its has five topics :-
THE FIRST TOPIC:The nature of Al-Hikr(Lease) in Jurisprudence & law.
THE SECOND TOPICThe kind of Al-Hikr(Lease) in Jurisprudence & law
THE THIRD TOPICThe Rules of Al-Hikr(Lease) in Jurisprudence & law
THE FOURTH TOPICRights & duties of grand land-lord
THE FIFTH TOPICThe period of Hikr (Grand rent) & other relevant matters is contains four issues.
THE FIRST ISSUE:Description of the period in Al-Hikr
THE SECOND ISSUEThe resultant rights with the passage & time.
THE THIRD ISSUERent vis-à-vis Al-Hikr (Lease).
THE FOURTH ISSUEExpiry of Al-Hikr (Lease) after completion of period or after its cancellation.
SECOND CHAPTERLong lease & its characteristics three issues are discussed therein:-
THE FIRST TOPICDefinition.
THE SECOND TOPICOrigin of long lease and its rules.
THE THIRD TOPICDifference between long lease and Al-Hikr.
THE SECOND TOPIC:Contract of two leases. There are three issues in it:-
THE FIRST ISSUE:Nature of contract of two leases.
THE SECOND ISSUERules of contract of two leases.
THE THIRD ISSUEDifferences between contract of two leases, and each of Al-Hakr and long lease. It has two problems.
THE FIRST PROBLEMDifferences between contract of two leases and Al-Hikr.
THE SECOND PROBLEM Differences between contract of two leases and long lease.
THE THIRD TOPICThe nature of obligation for utilization, its rules characteristics. It has three issues.
THE FIRST ISSUESThe nature of obligation for utilization.
THE SECOND ISSUESThe Rules of obligation for utilization.
THE THIRD ISSUESCharacteristics of obligation for utilization. It has two problems:-
THE FIRST PROBLEMDifferences between obligation of utilization and right of Al-Hikr.
THE SECOND PROBLEM Differences between obligation of utilization and right of AL-JARAH AL-TWILA (Long Lease)..
THE THIRD CHAPTERQuitrent & its rules. I has six topics:
THE FIRST TOPICDefinition of Al-KHULUWW(Quit rent) and facts about to possession.
THE SECOND TOPICKind of Al-KUNLUWW in view of landed properties and shops. It has six Topics..
THE FIRST TOPICRights of Al-KHULUWW in the properties of endorsement.
THE SECOND TOPICAmount of rent to be paid by lease holder.
THE THIRD TOPICBeginning of the right of AL-KUNLUWW in the properties of endorsement.
THE FOURTH TOPICAL-KUNLUWW in the lands of exchanges and nature of inheritance about These lands.
THE FOURTH TOPIC Al-KUNLUWW (Quit rent) in private properties and taking by a tenant Equivalent ground rent from another tenant.
THE FIFTH TOPICSale of quit rent by a lease holder and his power to dispose.
THE SIXTH TOPICRight of preemption of tenant and right of inheritance therein.
THE FOURTH CHAPTER Relation between the right of permanency and contingences. It has two Two topics:-
THE FIRST TOPICNature of transitory circumstances and terms for their application
THE SECOND TOPICNature of coercive circumstances and relation between them and right of Permanency.
I have collected academic material from trustworthy sources by way of close scrutiny and Perfect induction.
I have undertaken to define a rule or a problem linguistically & technically.
I have mentioned different opinions about a problems & argument thereof and the selected an Opinion which is preferable in my view.
I have summarized and analysed texts about the problem in some places. I have mentioned these text either support of the problem under discussion as for this purposes of comparing them with once another.
Firstly I have mentioned the opinions of the jurists belonging to four school of thought & added to it those of the jurists of Zaidiyyah and Imamiyyah, I have given the view point of Pakistan and Egypt law after giving the view point of jurists of Islam. I have the compared them by highlighting the points of differences and agreement in them.
While mentioning the school of thought, I have taken into consideration the chronological order.
As said above, the first to discuss the topic were scholars of hanafait or malikite school of thought. As far as the remaining scholars are concerned they have either not discussed it at all or discussed it briefly.
As this topic of Al-Hikr and Al-KHULUWW first appeared in Cairo, it was discussed in detailed by Egypt civil law. As far the civil law in Pakistan, it does not discuss it is detail. So in some places, I have confirm my self to make comparison between the Egyptian civil law with Islamic Jurisprudence.
I have traced the path of trust without showing prejudice to any school of thought.
I have given the number of verses of Quran in their relevant chapter.
I have documentation the traditions mentioned in this thesis leaving aside the traditions of two authentic books i.e. BUKHARI and MUSLIM. I have mentioned the ranks of tradition as such and weak as explained by the scholars.
I have written the biography of some eminent persons mentioned in this thesis explaining their lineage, date of birth and death. Their academic achievement, work.
At the end of thesis I have affixed five indexes as under:-
Index of Quranic verses
Index of the traditions of the Prophet (Peace be upon him).
Index of distinguished personalities.