Land inheritance between Ottoman law and Islamic law
Until a certain date, the Land Department used to apply the Ottoman land law with regard to the passing of the estate from the deceased to the heirs whereby a female received a share equal to that of a male. The department later applied the Islamic land law whereby a male received twice the share of a female. Is it permissible for a woman 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 paperwork from the difference between her share according to the Ottoman land law and that according to the Islamic land law?
The juristic basis for this or the Ottoman land law was based on the idea of ‘miri’ or ‘amiriyya’ lands [state lands] i.e. that these lands belong to the state and their usufruct belongs to individuals. This was mentioned in the book Majmaa Al-Anhor fi Moltaka Al-Abhor (1/664): “State lands are those lands which the state owns through conquest or treaty, but which are not owned by the people. Ultimate title to land lays with bayt al-mal [state treasury]. Miri land is rented through an invalid contract under the condition that the tenants cultivate it and pay the state a percentage of its proceeds. Such land was also known as al-ushiriyya, i.e. tithe-paying land. However, miri land does not belong to those who lay their hands on it, so they cannot sell, buy, or give it away.”
Hashiat Ibn Abdeen (4/524) states that: “ It is not permissible for someone to sell a parcel of land he has laid his hand on but which does not rightfully belong to him (miskah). It was so called because a person appropriates it without ever relinquishing it. The rules pertaining to it are based on the orders of the Sultan in accordance with fatwas (rulings) delivered by the scholars of the Ottoman state.”
Early legislations deprived females from utilizing miri lands. It was later decreed by Ottoman sultans that females may inherit the same shares of miri lands as males. Hashiat Ibn Abdeen stated that: “Miri land is passed to males without giving females a share in them….In the year 958, occupation right to miri land, which involved expenses of production, could be transferred to others by registration. Females, who were previously denied the right to receive the money spent by their fathers, were given a share as stipulated by the Sultan`s decree”[4/524]. Accordingly, heirs used to share the right of usufruct of miri lands equally regardless of their gender.
After reviewing Ottoman miri land law, it is clear that these lands are miri, and that the wali [governor] enjoys the right to determine how they are to be divided and passed from the person who has right to them to anyone else through sale during their lifetime or after their death. At the beginning, males received a share but females were denied that right. Later, females also received shares equal to that of males, and the situation remained so until a decree was issued, whereby the land’s usufruct was divided in accordance with the division of the estate. This does not necessarily make them mulk (owned); they remain miri lands that are divided in a manner similar to that of an estate as determined by the wali or his deputy.
Therefore, equal division shares were not established on the basis of inheritance laws so as to consider them invalid, but were rather governed by the discretion of the wali.
Nevertheless, the state remains the rightful owner. Consequently, a female is not sinful if she benefits from what was granted to her by Ottoman land law that was drawn up by the jurisprudential scholars of the Ottoman state based on a sound Islamic ruling.