Being himself a grant-holder, Thanesari strongly presented this case in his Risalah dar Bay'-i Aradi.
At the outset of his treatise, he criticises opinions of pro-establishment `ulama who argued that 'the
conquerors had restored the lands to the former owners, so the latter or their descendants remained lawful
owners in post-conquest period and no piece of land granted out of it to a deserving person would become
the property of the grantee'. To Thanesari, 'major part of the lands in India comes under the category of
waste-land or ownerless property belonging to bayt al-mal. Such land, if granted by the ruler to a deserving
person and cultivated by him, becomes his property. He can sell or alienate it in any way likes. He argues
that there is no evidence that the conquered land in India was ever distributed among the fighters (ghanimin)
or was ever restored by the Muslim conquerors to the original owners after the initial conquest. In his
opinion such lands would have been occupied by some other people because of the flight or death of their
original occupants without the permission of the ruler. These new occupants cannot be considered the owners
of the land. The land remained in the ownership of the state10 (Thanesari, MS, ff.2b, 10a. cited by Zafarul-
Islam, 1990, p.90).
Thanesari does not discuss the nature of the land grant: usufruct grant (iqta' istighlal) or ownership
grant (iqta tamlik) - the two provisions of land grants in Islamic tradition - because this would have defeated
his purpose. It appears from the history of the period that the ruler in India generally granted land as usufruct
(istighlal). The term 'madad-i-ma`ash' also indicated that it was just a temporary help. But Thanesari and
some other ulama insisted to treat it as permanent grant (tamlik) because their own stake was involved
(Zafarul-Islam, 1990, pp.87-88). Some of them went to the extent to demand even exemption from payment
of `ushr over the produce of their self-cultivated land (ibid. 98).
Endnotes:
1. Mamluk or slave dynasty of Egypt that ruled heartland of Islam from1250 to 1517 before Ottomans
abolished their rule in 1517.
2. The author thankfully acknowledges his indebtedness to Baber Johansen in dealing with this section.
3. Historical background: Ibn Nujaym wrote his Tuhfah in order to defend waqf and private landed property
against the imminent Ottoman Qanunname of 960/1553. In 957/1550 Ali Pasha (d. 9721565) the then
Ottoman governor of Egypt carried an investigation of the legal states of Egyptian lands that yielded rent for
the upkeep of religious institutions and the salary of the religious scholars and military officers, ‘It is in
defence of these groups that Ibn Nujaym wrote his Tuhfah. (Johansen 1988, pp. 86, 87).
4. ‘The notions and concepts of the new doctrine on rent were first developed in Balkh and Bukhara during
the classical period. How and when the new doctrine became the prevalent legal doctrine in Mamluk and
Ottoman Syria and Egypt remains a matter of investigation’ (Johansen, 1988, p. 124)
5. For more details refer to Johansen, 1988, pp. 99, 100, 104, 109.
6. It is said that Umar’s decision to retain conquered lands in the hands of its previous owners was also
guided by many economic objectives, such as equitable distribution of land, its efficient use, a permanent
source for Bayt al-mal, interest of coming generations, etc.
7. The only known manuscript of the treatise is preserved in Mawlana Azad Library of the Aligarh Muslim
University, Aligarh, India. For details, refer to Zafarul-Islam, 1990, pp. 85-86.
8. In the Non-Arab Muslim world it has been common practice to write a title in Arabic while text is in the
local language. Sometimes the title is in Persian or Turkish while text is in Arabic. The present treatise is
such an example.
9. Although the title of the treatise is about sale of lands, the thrust is to prove the permanent ownership of
the land granted by the ruler to a person. This proof will entitle the owner of land to transfer or sell the land.
In the title the word sale has been highlighted because that denotes ownership.
10. It is interesting to note that in addition to his argument that conquered land was never restored to their
previous owners, Jalal al-Din Thanesari also tries, like his contemporary Egyptian Hanafi scholar Ibn
Nujaym, to protect the interest and ownership of land grantees on the basis of the flight and death of the land
owners provided the restoration is proved. However, there is basic difference between the two. In Egypt the