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Framing of (Ottoman) or (Miri)Transitional Inheritance

Answered as per Shafi'i Fiqh by Darul Iftaa Jordan
The Lands Department used to apply the Ottoman land law with regard to transitional inheritance(the passing of the estate from the deceased to the heirs) whereby a female used to receive a share equal to that of a male until a certain date. After that particular date, it applied the Islamic land law whereby a male received twice the amount of a female. Is it permissible for a lady to collect her share of inheritance in accordance with the Ottoman land law ? and is it permissible for her to pay the expenses of the inheritance paperwork from the difference between her share according to the Ottoman land law and that according to the Islamic land law ?

All praise is due to Allah, peace and blessings be upon the Messenger of Allah and upon all his family and companions: The framing of the transitional inheritance, or the Ottoman land law was based on the idea that Miri or amiriyya; that is state lands are the property of the state which in her turn made the citizens own the right of benefiting from them without actually owning them as was mentioned in the book:” Majmaa` Al-Anhor fi Moltaka Al-Abhor”{1/664} :” A state land is one which was taken by conquest, or by treaty, but was not made the ownership of its people; rather it became vested in the Treasury(Bayt al-mal)then, it was rented through an invalid contract under the condition that the tenants plant it, and pay a percentage from its production. Such land was also known as Al-ushiriyya, i.e. tithe-paying land. However, it is not the ownership of those who have laid their hand on it, so they cannot sell, buy ,or give it.” “ Hashiat Ibn Abdeen”{4/524} states that: “ It is not permissible for someone to sell a land which he had laid his hand on, but not rightfully his ownership (Miskah). It was called so because a person holds on to it, and never let go, and it has rules based on the orders of the Sultan in accordance with fatwas (rulings) delivered by the scholars of the Ottoman state.” Early legislations completely deprived a female from utilizing Miri lands, then the Sultan decreed that she is to be given a share equal to that of a male.”Hashiat Ibn Abdeen” stated that: “ A Miri land is passed to the male while the female is not given a share…….In the year 1958, such land which involved expenses of production could be transferred to someone else by registration; the females, who were denied to receive the money spent by their father, are to be given a share as stipulated by the Sultan`s decree.”{4/524}. Accordingly, the heirs used to share the right of benefiting from these lands equally regardless of their sex. After reviewing the Ottoman Miri lands law, it was clear that these lands are Miri, and that the Governor(Wali) enjoys the right of determining how they are to be divided and passed from the person who has the right over them to anyone else through selling or in postmortem. At the beginning, males were given a share, but females were denied that right. Later, females were given shares equal to males, and the situation remained so until a decree was issued, whereby benefiting from these lands was divided in accordance with the division of the estate, and this does not necessarily make them Milk(owned), but they are Miri lands that are divided in a manner similar to that of an estate as determined by the Wali, or his deputy. Therefore, divisions made in accordance with equality between the two sexes were not done from an estate view point in order to consider them invalid, but rather were done by the Wali regarding the transfer of the right to benefit from Miri lands to whom he sees fit. Nevertheless, the state remains the rightful owner, thus a female is not sinful if she benefited from that which was granted to her by the Ottoman land law drawn up by the jurisprudential scholars of the Ottoman state based on a sound Islamic ruling.

This answer was collected from the official government Iftaa Department of Jordan.

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