It is possible for one to conceive the possibility of discrimination between two types of land owned by those who became Muslims voluntarily. One of it is land that has been in cultivable state since a period before the legislative enactment of the Imam’s ownership of wasteland. Another category is lands that were wastelands at the time of the legislative enactment of the Imam’s ownership of wastelands, and were later rehabilitated by non-Muslims into a cultivable state and after that they embraced Islam voluntarily.

Therefore, each land of the first category will be considered the property of their owners and will not be classified as the property of the Imam, since it was not a wasteland at the time of the legislative enactment of the Imam’s ownership. Upon becoming Muslims, the owners continue keeping them because their Islam protects their life and property.

As for lands of the second category, they are the property of the Imam in view of the fact that they were wastelands at the time of the legislative enactment of the Imam’s ownership of wastelands. Therefore, they are classified as within the scope of the Imam’s ownership. Their rehabilitation by non-Muslims thereafter should not deprive the Imam of the property. The rehabilitation only leads to the establishment of their right to use. Therefore, if they embraced Islam, while holding the land, this right of theirs will be protected, as far as Islam spares and protects their property. But this does not mean that the proprietary ownership of the land is theirs. It neither adds to the property nor makes anyone its owner other than the real owner.

As a result of that, the land whose owner embraces Islam will remain his property, if its cultivation started before the legislative enactment of the Imam’s ownership of wasteland. But he would not be made the owner if its cultivation started after that, although he can keep the right to use the land. This elaboration looks like that adopted by the author of al-Jawahir on conquered lands (refer Appendix 1) where it is mentioned that “if its cultivation started before the legislative enactment of the Imam’s ownership of (rehabilitated) wasteland then it belongs to the Muslims, otherwise it is the property of the Imam and not that of the Muslim public”.

The justifications for the statement about those lands whose owners became Muslims voluntarily in the period of the formation Islamic legislation includes the principle of the Imam’s ownership, but it is not an evidence that land becoming the property of a certain unbeliever who cultivated it and became Muslim voluntarily, while holding its ownership. It is not by reason of his reclamation works or by reason of him accepting Islam.

His rehabilitation efforts do not confer upon him the proprietary ownership of the land because rehabilitation only implies competence or legal capacity. As for his acceptance of Islam, we do not find anything, which proves that it is a basis for a person keeping possession of a land he holds, when he embraces Islam. All the proofs that are advanced in respect of this are disputable.

a. The right to keep holding a land on the basis of his acceptance of Islam is inferred from the application of the texts, which say that when the landowners embrace Islam voluntarily, their lands will be left in their possession and will be theirs. The tradition was applied to both the lands with cultivation that started before the enactment of the law of the Imam’s ownership of wasteland and those after that.

Our reply is that these texts have occurred in two traditions related by Ibn Abi Nasr and the chains of narration in both are weak and cannot be convincing evidence.

b. It may be inferred from general texts that point to the fact that Islam protects life and property and the literal meaning of these texts is the conferring of the land to its owner when he embraces Islam voluntarily.

Our reply is that the meaning of these texts is that the property that should not be taken from owners who have accepted Islam voluntarily are those that would have been publicly lawful were it not for his conversion to Islam. This side of the texts corresponds to the other side which expounds the rules of law as regards a belligerent unbeliever, and both sides as a whole make it clear that if an unbeliever wages war against the call to (the mission of) Islam, his land, his possession and his life are made public property (seizing them is permitted), and if he embraces Islam voluntarily all these are spared.

Then what they are entitled to is the very thing, the appropriation of which would have been mubah for (commonly permissible to) the Muslims, if they did not turn Muslim and disputed the call to Islam. Therefore, in order to know what is spared for him and what he would acquire - if he turns Muslim - it is necessary for us to know what is it - among his possessions – that would be mubah and would be made over to the Muslims, if he did not accept Islam and instead opposed the Islamic mission.

In this connection it is necessary for us to recall what we have discussed earlier in Appendix 1. We mentioned that in the case of a land that was conquered by force and whose owner did not embrace Islam, if the land were under already cultivation before the legislative enactment of the Imam’s ownership of wasteland, then it would be the property of the Muslims. If its cultivation started after that, then it will be the property of the Imam, because (actually) it was not a property of the non-Muslim owner before the war but was instead a property of the Imam. The non-Muslim owns the right of use over the land before war, because of his rehabilitation efforts and this right will be transferred to the Muslim public.

Therefore, on this basis we learn that the owners who embrace Islam voluntary would not be the owner of lands unless the cultivation started before the legislative enactment of the Imam’s ownership of wastelands, because the Muslims would not acquire their ownership on the basis of war. In short, we knew that the object - which is spared by the voluntary conversion to Islam - is the very object which is captured as booty in war against the opposition to the call to Islam in view of the protection of life and property accorded - in the texts - to those who embraced Islam, corresponds to their lawfulness for the Muslims.

We added that the acquisition of proprietary right over conquered lands (that were originally rehabilitated wasteland) is not lawful for the Muslims if the cultivation started after the legislative ownership of the Imam was in place. It is lawful for them in the case the unbeliever acquired to it by reason of his rehabilitation of it (and was later acquired by conquest and became public property of the Muslims).

From these we conclude that a person who embraces Islam while having possession of a rehabilitated wasteland - that started after the legislative enactment of the Imam’s ownership of wasteland - will secure his right to the land. The right would otherwise be transferred to the Muslim public, if he opposed the call to Islam. He does not own the land. He only owns the land if its rehabilitation started before the formative period of Islamic Law.

The Islamic principle therefore does not add any new thing to the property nor confers new proprietary right that was not there. It only preserves those rights and ownerships that he previously enjoyed. As to the wasteland that a non-Muslim rehabilitated after the legislative enactment of the Imam’s ownership of wasteland, he does not own it. He only acquires a right to use it, while it remains the property of the Imam. Then, by his voluntarily embracing Islam, he preserves his right and it continues to be his property as it was before. It is status quo.

c. It was the customary practice (siratun-nabiyy) of the Prophet to leave the lands in the hands of its owners (if they embrace Islam voluntarily) without a scrutiny as to the date of the rehabilitation of the land and without demanding from them a fixed land tax. It may be inferred from this that Islam always conferred ownership of a rehabilitated land upon the one who joined the fold of Islam voluntarily.

Our reply is that, it is beyond any doubt an established illustrious practice of the Prophet. But it does not demonstrate ownership of the land by he who embraces Islam voluntarily. Nor does it demonstrate that such land is outside of the boundary of the Imam’s ownership. There is a practical difference between the land’s ownership by voluntary acceptance of Islam by its owner and its being the Imam’s property along with the personal right of use by its ‘owner” becoming Muslim voluntarily.

This only becomes apparent in respect of the imposition of kharaj (land tax), for if the land were the property of its ‘owners’ who have embraced Islam, there would be no justification for the imposition of the land tax on them. But if the ‘owner’ only had a right of use to it, while it continued to be the property of the Imam, the land tax will be due from him to the Imam. This practical difference does not arise in the customary practice of the prophet, for the Prophet used to waive land tax. Therefore, the fact that he did not collect land tax cannot be considered a proof of the exclusive (private) proprietorship of the land.

Thus, it becomes clear that this elabouration in respect of such lands – between those rehabilitated before and those after the legislative enactment of the Imam’s ownership of wasteland - although not invalid from the juridical point - encounters difficulty in gaining consensus from the scholars thus making its adoption difficult. It is inevitable that by recourse to consensus, ownership of such land is absolutely with the original owners who embrace Islam voluntarily.