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LECTURE
II.

Proprietary rights according to Mahomedan

law.

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In fact the Persian sovereigns of the Sowad seem originally to have considered that something like a partnership existed in the produce between the sovereign and the cultivator, like the metayer system in some European countries. A contract for such a division of the produce as was thus assumed to be implied in the relation of sovereign and cultivator was not unknown to Mahomedan law, and was called mozaraut. The analogy in the khiraj to such a contract depended upon the sovereign's taking a proportion of the actual produce; and according to that analogy the sovereign was the original proprietor of the land: that analogy however failed when a fixed rate was imposed, since in Mahomedan law the reservation of a fixed quantity, instead of a share, vitiated the contract of mozaraut. The sovereign would therefore, according to the Mahomedan theory, cease to be the proprietor of the land as soon as he commuted his right to a share of the produce for a fixed rate in money. In the Sowad, as we shall see was the case in India, Omar in imposing the khiraj, in general adopted the rates which he found prevailing; but he increased the rate for some kinds of produce. Omar's proceedings appear to have been thenceforth considered a binding precedent for all cases. to which they were applicable; but in cases for which they were not a proper precedent, the khiraj was imposed according to the circumstances of the case, being always a proportion of the produce or a fixed equivalent.3 Where, however, Omar's assessment was binding, the rates fixed by him could not be increased: but it was generally considered that they might be reduced according to the

'Baillie's Land Tax, xvii.

2 Ib.

Baillie's Land Tax, xviii,

2

THE TWO KINDS OF KHIRAJ.

1

45

capacity of the lands. The Sowad assessment does not seem to have been acted upon as a precedent in India, and probably for the reason that the conquest of India was gradually completed, and therefore the system to be introduced was determined much more by practical than by theoretical considerations.

2

LECTURE
II.

We have seen that the khiraj was sometimes a proportion The two kinds of khiraj. of the produce and sometimes a fixed money rate. These two methods of assessment came in time to be considered different in kind, and bore different names. The kind of khiraj which was a proportion of the produce was called mookasumah. The proportion taken was one-fifth or onesixth of the actual crop. This class of tax was assimilated to the ooshr when it came to depend upon the actual crop and not on the capacity of the land. It failed, in consequence, when the land was uncultivated. The other class of khiraj was called wuzeefa (something in obligation). The obligation to pay this class of khiraj was considered "a personal liability on account of a definite portion of land," depending on its capability and not on its actual produce; and it was therefore due so long as the land retained that capability, whether actually productive or not.3 It retained therefore in this respect the characteristics of the original khiraj, and it was this feature of the original khiraj which was held to render it a peculiarly suitable tax for unbelievers. It was consequently the wuzeefa khiraj which was imposed on conquered unbelievers.*

'Baillie's Land Tax, xxi.
2 Baillie's Land Tax, xviii.
3 Baillie's Land Tax, xix.
Baillie's Land Tax, xix.

Ayeen Akbery, Vol. I, 350.
Ayeen Akbery, Vol. I, 350.

LECTURE

Implied owner

ent persons.

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As I have before mentioned, the sovereign was, in Maho

II. medan theory, considered the original proprietor of the ship in differ- land, so long as he received a share of the produce; but when this share was commuted into a fixed money rate, he ceased to be proprietor. I shall hereafter discuss the extent of proprietary right which was included in any of the recognised categories before British rule, but I use the term proprietor at present for the owner of such rights as were then in contemplation, whether rights to the soil or to the cultivation or produce of it. The point which at present I wish to make clear is, that, in Mahomedan theory, the two modes of assessment implied theoretically a different ownership; the one in the sovereign, or in the sovereign and cultivator jointly, the other in the cultivator. And in that theory a change in the mode of assessment, which was in some cases allowed by law, would involve a change of the theoretical ownership. Land which had been assessed with the one kind of khiraj was sometimes assessed with the other kind instead ; and then it appears to have been considered by Mahomedan lawyers that the proprietary rights had been transferred by the change.1

Resemblance of

wuzeefa khiraj

The wuzeefa khiraj, depending upon the capability of to the tax paid the soil, and being independent of its actual cultivation, by the khoodkashts. closely resembled in those respects the tax paid by the khoodkashts under the Hindoo system. In fact the whole of the assessment in Hindoo times was of the same character; the pyekashts being less bound to the land and more disposed to abandon it under pressure; but being equally obliged while they held it to cultivate and pay the assess

Baillie's Land Tax, xxxiv. ? Baillie's Land Tax, xliii.

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II.

ment, which was not remitted when they held the land LECTURE but did not choose to cultivate it.

According to the Mahomedan theory, as I have before Extent of proprietary right. mentioned, the imposition of the wuzeefa khiraj recognized a proprietary right in the cultivator or taxpayer.' This right was however only "to the productive powers of the soil, without which the cultivator would not be able to meet his liability for the khiraj," but not necessarily to the soil itself and the minerals in it, or to the large right known as a fee-simple in England. The right was nevertheless an alienable one: it is expressly declared in the Hedayah that the lands of the Sowad of Irak, on which the khiraj was imposed, were "the property of the inhabitants who might lawfully sell or otherwise dispose of them." This is said of the khiraj lands generally, but is perhaps to be restricted to those subject to the wuzeefa khiraj, since that mode of assessment alone excludes the sovereign from a share in the produce, and renders the cultivator personally liable for the khiraj, whether he cultivates the land or not. It is the liability to the wuzeefa khiraj which involves the personal burden, and which appears to carry with it the individual right to the exclusive occupation of the soil; the sovereign ceasing according to Mahomedan theory to be a partner with the cultivator thus assessed. Under such circumstances alienation would be more easily allowed than if the sovereign continued to be a sharer. It is obvious that when the rendering of the wuzeefa khiraj thus implied ownership, the rendering of it, even in a representative or

Baillie's Land Tax, xx.

2 Baillie's Land Tax, xliii.

3 Baillie's Land Tax, xx.

• Land Tenure by a Civilian, 34, Appendix viii to x.

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intermediate capacity and not as the actual cultivator, would tend to give a colour of ownership: and we may perhaps in this way partly explain the assumption of proprietary rights by the zemindars in later times.

Wuzeefa land, as I have said, was alienable: no permission was required from the sovereign:' it was thus the subject of a more absolute proprietary right than any which has at present came under our notice. The right to alienate was more limited in the case of mookasumah land: land of this class went to the heirs of the cultivator, but could not be sold or mortgaged without the permission of the sovereign: and the sovereign himself was considered to have the right to make a grant of such land in some cases.3

The khiraj, being a conqueror's tax, was naturally a heavy one. The limit of it, whether wuzeefa or mookasumah, was half the gross produce. With respect to its amount the imposition of the khiraj at its highest rate would have been a great change from the ordinary assessment of the Hindoo system: and probably for the reasons already referred to, the conquerors felt unable suddenly to insist upon the change; and in any case they do not appear at first to have increased the assessment much, if at all. But we shall see throughout Mahomedan times a constant struggle to increase the assessment, which was probably due in part to the high standard to which in theory the khiraj might be raised. This standard, in fact, appears at last to have been reached, if not exceeded. Whatever might

Baillie's Land Tax, xxxv.

2 Baillie's Land Tax, xxxiv, xxxv.

3 Baillie's Land Tax, xxv.

Baillie's Land Tax, xxi. Harington's Analysis, Vol. III, 234,

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