THE
OTTOMAN LAND CODE.
TRANSLATED FROM THE TURKISH
BY
F. ONGLEY,
OF THE RECEIYER-GEXERAL'S OFFICE, CYPRUS
(PASSED HIGHER STANDARD EXAMINATION IN TURKISH).
REVISED, AND THE MARGINAL ROTES AND
. INDEX ADDED,
BY
HORACE E. MILLER, LL.B.,
OF THE MIDDLE TEMPLE AND SOUTH-EASTERN CIRCriT, BARKISTER-AT ' AW
AUTHOR OF STEPHEN* AND MILLEK'S ' COl'XTY COUNCIL C
501 1
LONDON:
WILLIAM CLOWES AND SONS. LIMITED,
27, FLEET STEEET
S2RVKES
< LONDON :
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
STAMPOilD STiSEEf AND C1IAKING CUOS3.
TO HIS IMPERIAL MAJESTY
GHAZI ABD-UL-HAMID KHAN
^
SULTAN OF THE OSMANLI.
KHALIFE OF THE MOSLEM.
SIRE,
Under YOUR MAJESTY'S beneficent reign signal
progress has been made in the development of the
splendid resources of the Ottoman Empire.
Englishmen too have shared with Osmanli in the
increasing prosperity of YOUR MAJESTY'S dominions.
I have translated into English the Land Laws
promulgated by YOUR MAJESTY'S august father and
predecessor GHAZI ABD-UL-MEJID KHAN in order to
show my countrymen how they may in fullest
measure reap the benefits of the far-sighted policy
which allows them to hold land in Turkey, arid to
instruct them in the relations ordained between the
cultivators of the soil and the Government under
which it is held.
That ALLAH may grant YOUR MAJESTY a long and
prosperous reign is the prayer of
Your Majesty's most obedient servant
THE TRANSLATOR.
a 2
r
r
ERRATUM.
ge 218, Article 1, line 2, for " movables," read "pure freehold
Mulk) properties (Ewlak Slrfe)."
EXPLANATION.
THE Arabic numerals which appear in the text within paren-
theses refer to the Translation of the Notes in the Legislation
Ottomane, for which see below, p. 279, et seq. Thus, on p. 1, we
read " Arazi Memluke (6) is of four kinds." The reference
here is to note 6 on pp; 280-1.
CONTEXTS.
1. LAND LAW. 7. Ramazan, 1274.
Preface ... 1
Arazi Mernluke ...... 1
Building sites ...... 1
Freehold ...'.... 2
Arazi Ushrie 2
Arazi Kharajie ...... 2
Kharaj Mukaseme ..... 2
Kharaj Mmwazz&f .....'_'
Arazi Mevkufe ....... 4
Arazi Metruke' ....... 6
Arazi Mevat . > . . . . . 6
Book I. Arazi Mine.
Chap. 1. Tasarruf (Possession) .... 8
,, 2. Feragh (Sale, Cession, or Alienation) . 20
3. Intikal (Transmission by Inheritance) . 'J-
4. Mahlulat (Vacant, Escheated) . 31
Book II. Arazi Metruke', Arazi Mevat, arcl Jibal
Mubah (Mountains).
Chap. 1. Arazi Metruke ..... 48
2. Arazi Mevat ....
Book III. Muteferiat (Diverse) .... 57
2. TAPU LAW. 8. Jemazi ul akhir, 1275 ... 71
3. REGULATIONS REGARDING TAPU SENEDS. 7. Shaban,
1276 , 88
Contents.
4. INSTRUCTIONS KEGAKDING TAPU SENEDS. 15. Shaban,
1276 90
5. LAW ON THE REGISTRATION OF CENSUS AND OF PRO-
PERTIES. 14. Jemnzi ul evel, 1277 .... Ill
Chap. 1. Number and Mode of Appointment of
Officials 112
Chap. 2. Duties of Officials and Measures for Regis-
tration of Census and Properties . . .113
Chap. 3. Duties of Managing Commissions, Manage-
ment and Apportioning of Verghi and Temettu
Taxes and other Particulars .... 120
Chap. 4. Village Divisions and Duties . . . 126
5. Occurrences . . . . .127
6. Management of Seneds, Papers, Record
Books, and Kochans ..... 130
Chap. 7. Fixing and Preservation of Plates bearing
Numbers with which Properties are Marked . 133
Conclusion. Matters of General Bearing. . . 133
6. SUPPLEMENT TO TAPU LAW, 1275. 26. Safer, 1278 . 135
7. LAW DECIDED ON BY IMPERIAL IRADE CONCERNING
THE SALE OF LAND OF CERTAIN DEBTORS FOR THE
PAYMENT OF DEBT. Rebi ul evel, 1279 . . .136
8. REGULATIONS CONCERNING COUNTERFOIL CERTIFICATES
FOR MUSAKAFAT AND MUSTKGHILLAT MEVKUFE IN
THE PROVINCES. 25. Ramaza,:, 1281 . . . 138
9. INSTRUCTIONS REGARDING CERTIFICATES FOR MUSAKAFAT
AND MUSTEGHILLAT MEVKUFE IN THE PROVINCES.
25. Ramazan, 1281 147
10. INHERITANCE OF MIRIE AND MEVKUFE LAND POS-
SESSED BY TAPU. 17. Muharem, 1284 . . . 158
11. FISCAL REGULATIONS RELATIVE TO THE APPLICATION
OF THE PRECEDING LAW. 17. Muhnrem, 1284. . 161
12. INHERITANCE OF MUSAKAFAT AND MUSTEGHILLAT MKY-
KUFE HELD IN IjARETEiN. 7. Safer, 1284 . . 164
13. ACQUISITION OF PROPERTY BY FOREIGNERS. End of
Jemazi ul evel, 1284 ... .168
14. APPENDIX TO INHERITANCE OF MUSAKAFAT AND
MUSTEGHILLAT MEVKUFE, 1284. 2. Zilkade, 1285 . 172
Cont xi
OK 1 AKA/I MIKIK ASH MKV-
AM' Mi- . KGHII.I.AT YAKFIE.
'_':;. Run i 177
111. LAW (\>N< Ki:MN, THE MoiiT<;A<:E (TEIHIIS) OF Pr.dl'EKTY.
L'J. llcl.i ul akhir, 12* 180
17. LAND LAW, 1274. SUPPLEMENTARY ARTICLE. 25. Mu-
hnrem, IL 182
. >TRUCTIONS CONCERNING TAPU OPERATIONS (no
date) 183
19. LAW CONCERNING THE PROCEDURE OF MUSAKAFAT
AND MUSTEGHILLAT VAKFS. 9. Jemazi ul akhir,
1287 . 198
Chap. 1. Concerning the kinds of Vakfs and Plights
of Possession . . , ., . .198
Chap. 2. Concerning the Formation of the Adminis-
tration of Title-Deeds, and the mode of keeping
the Registers . . . ' . . . 201
Chap. 3. Concerning the System of Alienation and
Inheritance ....... 203
Chap. 4. Concerning the way of preparing Title-
Deeds of Vakfs 207
Chap. 5. Concerning Collecting (Jabi) and Clerical
Services. . . . . . . 210
20. REGULATIONS MODIFYING ART.' 18 OF TAPU LAW, 1275.
Rejeb, 1288 212
21. APPENDIX TO LAW CONCERNING CONDITIONS FIXING
THE SECURING OF DEBT AFTER DEATH BY ARAZI
MIRIE AND MEVKUFE AND MUSA,KAFAT AND MUSTE-
GHILLAT VAKFIE', 1286. 21. Ramazan, 1288 . . 216
22. LAW CONCERNING THE SALE OF IMMOVABLE PROPERTY
FOR DEBT. 15. Sheval, 1288 218
23. LAW CONCERNING MAHLUL VAKF HOUSES. 19. Zilhije,
12*8 224
24. APPENDIX TO " INHERITANCE OF MIRIE AND MEVKUFE
LAND POSSESSED BY TAPU LAW, 1284. 29. Rebi ul
akhir, 1289 ... 228
xii f Contents.
PAOB
25. LAW CONCERNING TITLE-DEEDS ISSUED BY THE DEFTKU
KHAKANI FOK MULK. 28. Rejeb, 1291 . . . 220
Chap. I. Mode of Issue of new Title-Deeds for
"Emlak" L':;i
Chap. II. Procedure in cases of Bale, Purchase,
Mortgage (Terhin), Inheritance, Gift and be-
queathal of " Emlak '* 234
26. APPENDIX TO ART. 41 IMPERIAL LAND LAW. 19.
Shaban, 1291 239
27. APPENDIX TO ART. 108 IMPERIAL LAND LAW. 28.
Rebi ul akhir, 1292 L'jo
28. APPENDIX TO ART. 6 TAPU LAW. 24. Jemazi ul akhir,
1292 2-11
29. ARTICLE INSTEAD OF ARTICLE 20 TAPU LAW. 24.
Jemazi ul akhir, 1292 242
SO. LAW CONCERNING THE EXTENSION OF INHERITANCE OF
MUSAKAFAT AND MUSTEGHILLAT MEVKUFE HELD IN
IJARETEIN. 4. Rejeb, 1292 243
31. INSTRUCTIONS CONCERNING THE ISSUE OF TITLE-DEEDS
BY THE DEFTER KHANE FOR ARAZI MEVKUFE. 6.
Rejeb, 1292 249
32. DECISION STATING THAT EXTENSION OF INHERITANCE
is NOT OBLIGATORY 15. Zilkade, 1292 . . . 257
33. LAW CONCERNING LAND. 7. Muharem, 1293 . . 259
34. INSTRUCTIONS REGARDING THE ISSUE BY THE DEFTER
KHANE OF TITLE-DEEDS FOR MUSAKAFAT AND MUS-
TEGHILLAT VAKFIE IN CONSTANTINOPLE AND THE
PROVINCES. 9. Rebi ul evel, 1293 . . . .260
35. APPENDIX . TO ARTICLE 91 OF THE LAND LAW. 10.
Rebi ul evel, 1293 268
36. INSTRUCTIONS REGARDING CERTIFICATES RECEIVED BY
THE EMLAK OFFICE. (These instructions bear no date,
but probably the date of the following belongs to them
also.) 269
37. VEZIRIAL ORDER THAT No ACTION is TO BE TAKEN IN
THE COURTS AND PUBLIC OFFICES BEFORE THE VERGI
ON PROPERTY HAS BEEN PAID. 10. Rebi ul akhir, 1293 278
TRANSLATION OF NOTES IN LEGISLATION OTTOMANS 279
THE OTTOMAN LAND CODE (a).
I. LAND LAW (b).
PKEFACE.
1, Land in Turkey is divided into five classes : ciassifica-
i. Arazi Memluke. Lands held in fee simple, j^ds!
freehold lands (1).
ii. Arazi Mirie. Crown lands, belonging to the
state exchequer (2)..
iii. Arazi Mevkufe. Lands ' possessed in mort-
main, but tenanted by a kind of copyhold (3).
iv. Arazi Metruke. Lands abandoned without
cultivation or ostensible owner (4).
v. Arazi Mevat. Dead lands, uncultivated and
unappropriated (5).
2. Arazi Memluke (6) is of four kinds : Definition
i. Building sites within the town or village (7),
and places on the border of such town or village,
of at most half a donum in extent considered as
the complement of habitation.
The Ottoman Land Code.
Definition ^- Land separated from Arazi Mine which has
Memiuke* been given into the possession of a person to be
held freehold by patent from the Crown and to
be possessed with all the conditions of freehold
proprietorship in accordance with the permission of
the Sheri (Keligious Law).
iii. Arazi Ushrie. Places given into the posses-
sion and distributed among the conquerors at the
time of the conquest.
iv. Arazi Kharaj ie. Places left in the hands of
the original non-Moslem owners at the same time.
Kharaj Arazi is of two classes :
One is Kharaj Mukaseme, from the produce of
which land, according to its capability, one-tenth to
one-half has been fixed to be taken.
The other is Kharaj Muwazzaf, on which land, by
way of limitation, a fixed sum of money is assigned
to be paid.
The servitude (8) c^ jail Arazi Memluke, that is
the land itself and its proprietorship, belongs to the
owner : like other property and goods it can be
inherited, and it is subject to the provisions of
Vakf, mortgage (Eehn), gift and pre-emption (9).
When Arazi Usnrir and Kharajie belongs to the
Beit ul Mai by then; 1 1 h of the owner without heirs, it
acquires the effect 'of Arazi Mirie (10).
Procedure. ; ; ?$?he procedure , to be followed with regard to the
four kinds of Arazi Memluke having been explained
in the Kutb Fikhie (Books of Keligious Law), the
'Land Law.
provisions of Arazi Memluke will not be treated on
in this law (11).*
XOTE.* The provisions in force with regard to Ar"z>
are conttiint"/ in the Mejele, and the procedure concerning sale,
purchase, mortgage (terhin), inheritance, gift, and bequeathed are
contained in No. 26.
3. The servitude of Arazi Mirie belongs to the Nature ot
Biet ul Mai (12). The places of which the transfer tenuri
and gift comes to the Government are arable fields,
pastures, yaylaks, kishlaks, woods, &c., which for-
merly, in case of sale or vacancy, were held with the
permission and through the gift of the possessors of
Timars and Ziamets, who were considered the owners
of the soil, and for some time with the permission and
through the gift of the Multezims (13) and Muhas-
sils (14). ( a ) Subsequently, on account of these being
abolished, as at present, they are .held by the permis-
sion and through the gift of the person ( b ) appointed
by the Government as official for this purpose,
and a title-deed with the Tughra (15) at the top is
given to the owner.
Tapu is the Muajele (immediate payment) given in Definition
exchange for the right to possess, 'And is collected by
the official for the Government.
NOTE. a It is stated in Art. 4 of the Regulations dated 23.
Muharem, 1293, Destur, Vol. III., p. 300, that Orders, En
and Sheri Hams, concerning settlement of disputes, and unknown.
; Sipahi, Multezim, and Mutessellirn title-deeds, v:ill not be con-
sidered as legally valid title-deeds for the possession of Forests.
B 2
The Ottoman Land Code.
if /s nf,ifi-,f in Art. ] of the Tapu Law, dated 8. Jemazi
n? dl, nt f/n'sr are ll/c l)<j'tcrd<trs anil Ma./ ami Kaza
Mmffm. if hus been //"f/'/i,,/ .sw/w/ //,;,//// in a Vezirial letter, dated
', that as the /></// Khakani nd Tapu Memours^
: lln'xe Memours are to lie considered
Hie soil, it ml in plan's inhere the Tapu system has
i nt/fil if. is put into execution, the Mutessarifs,
, I\<t! m<tlca.iux, ami Mai Memours are to be considered
ntch.
1. Arazi Bfevkuf is of two classes (16) :
i. Is land which while being really Arazi Mem-
lulu' lias been made Yakf in accordance with the
Sheri. The servitude and all the rights of posses-
>ii of this kind of Arazi Mevkufe being that which
MS the Yakf, the provisions of the law (17)
do not apply to it ; and as it is necessary that they
should be treated in accordance with the conditions,
whatever they may be, of the, bequeather only, this
class of Arazi Mevkufe will not be treated on in
this law.*
K.* J" a n'ifh the Imperial Trade communicated
I;! I '<:.///<// /('//- "cr>iii'</ real Vakf land, Musakafat, and
ghiuat, n,,<L cases which should be heard through Mullahs are
16 Sliert Courts.
ii. Is land separated from Arazi Mirie which has
mad.- Vakt' by the Sultans or by others with
thr permission of the Sultan (18), as the Yakfiet of
.ind of Ijind.only means that the Government
i as the tithes and taxes, of a piece of land
Land Law.
separated from Arazi Mint- have !><
some object by the Sultan, this kind of Ara/.i AOli^
is not real Yalef (Evkaf Saliihaj. Most of the Arazi
Mi'vkufe in the Imperial dominions is of this cate-
gory ; and the servitude of this Takhsisat category of
Arazi Mevkufe, like simple Arazi Mine, being that
which concerns the Beit ill Mai, the legal procedure
which will be explained and stated hereafter will
be carried out entirely regarding it. But in the
same way as the fees on sale and inheritance, and
the equivalent value of vacant (Bedel Mahlulat)
simple Arazi Mirie belong to th^ Government, so
also in this kind of Arazi Mevkufe they belong to
the Yakf. As the provisions which will be stated
hereafter with regard to Arazi Mirie shall also be
applied to this category of Arazi Mevkufe, when-
ever the term Arazi Mevkufe is used in this law,
this " Takhsisat " category of Arazi Mevkufe is
meant. But there is also a kind of this category
of Arazi Mevkufe of which, while the tithes and
taxes (19) belong to Government in the same way
as its servitude belongs to the Beit ul Mai, only
the rights of possession have been assigned to some
object, or its servitude belonging to the Beit til
Mai, the tithes and taxes together with the rights of
possession have been assigned to some object. The
provisions and procedure of the law do not apply
to the sale and inheritance of this kind of Arazi
Mevkufe, which are possessed and cultivated only on
The Ottoman Land Code.
1< -half of the Vakf, either by itself or by way of
letting, and the profits derived therefrom shall be
expended on the thing or person in whose favour it*
is stipulated (20).*
NiTK.* In accordance with the Imperial Irade communicated
b// Vczirial letter, dated 21. fiamazan, 12D6, cases concerning
Merknfi' of the, Takhtixat category, Arazi Mrrie, Arazi
Mi-trnki', A /'/:' M-i~at,uttd boundary disputes between villages and
>re to be heard in the Nizam Courts.
ti<m <>f
Arazi
Metrukc.
5. Arazi Metruke is of two classes :
i. Are places which have been left for the public.
Public roads are of this category (21).
ii. Are places which are left and assigned to the
inhabitants in general of a village or town, or of
several villages or towns. Pasture lands (meras)
assigned to the inhabitants of towns or villages are
of this category (22).
NOTE. See Note to Art. k.
I>efinition
of Arari
6. Arazi Me vat is waste (Khali) land which is not
in the possession of anybody, and, not having been
left or assigned to the inhabitants, is distant from
town or village so that the loud voice of a person
from the extreme inhabited spot cannot be heard, that
is about a mile and a half to the extreme inhabited
spot, or a distance of about half an hour (23).
IE. See Note to Art. 4.
Land
7. This Land Law is divided into three books : Arrange-
ment.
BOOK I. Arazi Mirk'.
BOOK IT. Aru/i Metruke and Arazi Mevat, in
which book Mountains (Jibal Mubah) will also
be treated. .
BOOK III. Muteferikat (Diverse) (24).
77ic Ottoman Land Code.
BOOK I.
ARAZI MIRIE.
CHAPTER I. TASARRUF (POSSESSION).
CHAPTER II. FEIIAGH (CESSION, SALE, ALIENATION).
CHAPTER III. I^TIKAL (TRANSMISSION BY INHERITANCE).
CHAPTER IV. MAHLULAT (VACANT, ESCHEATED).
CHAPTEE I.
THE MODE OF POSSESSION (TASAKRUF) OF ARAZI
MIG1E (25).
Distribu- 8. The whole of the lands of a town or village can-
land and no * ^ g ran ted en Uoe to the whole of the inhabitants
delivery of nor by choice to one*, two, or three of them. Different
title-dmls. J
pieces of land are given to each inhabitant, and title-
deeds (Tapu sened) showing their possession (26) are
delivered to them.
9. Every kind of thing, that is wheat, barley, rice,
madder root and other grain, is sown, or is caused
Land
to be sown, bv h'ttiiiLC or li-ndinir. "n Ara/i Mini' that Mode of;
* cultiva-
j'able of cultivation. Without proving (2i thm.
ihi' valid excuses that will be stated in the chapter
on Makltilat it cannot be left fallow.
10. Meadows ('28) from which the grass is ivapod Meadows
ab anti'iiM and from which titheable produce is taken Tapu. } '
are the same as cultivated lands and are possessed by
Tapu. Only the possessor profits by the grass which
grows and he can prevent another from profiting
by it (29). Meadows of this kind can be broken
up and cultivated with the permission, of the official.
11. Only the owner of the land- profits by the grass Owner of
called " Kilimba " which grows on land held by Tapu A
and which, has been left fallow in order to rest the
land according to its degree of productiveness (30).
He can prevent another from entering that land and
from letting his animals enter and graze (31).
12. Without permission from the official a person Land not
cannot use the earth of the land which he possesses to u p f r cul
make things like bricks and tiles". If he has made c ' a - v<
them the local value (32) of such earth, whether .such
land be Arazi Mirie or Meykufe, shall be taken from
such person for the Treasury.
13. A person can prevent another from passing
without right (33) through the land which he owns by
io The Ottoman Land Code.
Provision Tapti, but he cannot do so (34) if there is db antique
trespass, a right of passage through that land.
14. Another person cannot arbitrarily open a
trespass, channel on the land of the person who possesses it
without having obtained his permission and help.
And he cannot make a threshing-floor and in any
other way also arbitrarily take possession (35) of it.
Severance \ J^and possessed in partnership capable of
of shares in r
partners' division, that is, if it is possible for each one oi the
partners to derive a profit from his allotted share, and
the partners or some of them ask for division (36), the
share of each one shall be separated and assigned by the
official in the presence of the partners or their legal
agents by drawing lots according to the Sheri and
other equitable means. And if it is not capable of
division it shall be -possessed as before in partnership.
" Muhaiat," that is to say, the system of possession
by turns, is not applicable (37).
Severance ] On the division of the land in the way stated
to be final. m J
in the preceding article, after each partner has fixed
the boundaries (38) and taken possession of his share,
none of them shall be able to annul the division and
cause a fresh one- (39).
Condition 17. Land cannot be divided without obtaining the
permission and the assistance of the official and with-
out the owners or their legal agents" -being present.
Land Law. n
If it lias been divided such division will not be
respected (40).
18. Lands capable of division in the manner stated Lands of
in Art. 15 shall be divided through the medium of the
guardians (41), if the owners or some of them of land
in partnership are minors. The lands of lunatics and
imbeciles shall likewise be divided through their
guardians (42).
19. The person who has the sole possession by Tapu Conversion
of such places as forests and pernallik (43) can make
it into arable land (44) by opening it up in order to
cultivate it. But one of the persons who holds such
places in partnership cannot, wi'thout the permission
of the other partner, make the whole or part of it into
arable land by opening it up. If he has made it, the
partner can also (4o) be partner in such cleared
land (46).
20. Actions concerning Tapu land which has been Limitation
held for ten years without opposition will not be
heard without one of the legal disabilities, such as
minority, madness, force, and being absent in a dis-
tant country, having been proved according to the
Sheri. They will be heard up to ten years from the
date of the cessation of such valid excuses, and after
that time has passed they will not be heard. But if Admission
the defendant admits having unlawfully seized and aLt^f "
cultivated the land, attention will not be paid to the ^ ron s-
domg.
12 The Ottoman Land Code.
lapse of time and possession, and the land will be
taken and given to the owner (47).
NOTK. It is notified in the Mazbata, of the Mejele Commission
that the period during which actions can he taken by the Arazi
Memours concerning the servitude of land is 36 years. According
to Art. 1BG2 of the Mejele, the prescriptive period for cases concern-
ing private roads, heds of streams, and watering rights on Arazi
Jllirfi' is 10 years.
No claim 21. Land which has been seized and cultivated
orajtIonMrf un l aw f u lly or by force, and on which the taxes have
laud taken been paid every year, after having been taken and
fully. given back by the official after trial, neither the
official nor the person taking back his land shall have
the right to claim aji indemnity for the deterioration
of the land (48) or an equivalent rent (Ijri Misl) from
the person who unlawfully or by force seized and
cultivated it. This procedure 9 will also be followed
with regard to the" lands of minors, lunatics, and
imbeciles (49). ,
Crops upon 22. When the land taken and cultivated unlawfully
has been 10 or ^J force has been restituted, the restitutee can
nave ^ e cr P s or .other produce sown by the resti-
tutor who took the land, by the means stated, pulled
up and given to him, but he has no right to keep
them (50).
Appendix authorized by Imperial Irade and published
in the newspapers : " If the seed has not yet come up, the restitutee
'! driver its equivalent to the restitutor and take possession of
that sown."
Land Law. 13
23. If a person lets or loans to another the lands Estoppel of
which he possesses, the lessee or borrower has no bojTOwer<
fixed prescriptive right over the land on account of
having possessed and cultivated it for a long time,
while it is admitted that he is the lessee or borrower.
In this case no consideration is paid to the lapse of
time, and the owner of the land has at all times the
right to take it from the hands of the lessee or
borrower (51).
24. Places other than yaylaks (52) and kishlaks Appiica-
assigned to the inhabitants of one or several villages to ya yiaks
which have been made into independent yaylaks ' k d g ku
and kishlaks ab antique, and which have been pos-
sessed independently or in partnership by Tapu, are
not different to cultivated land and the legal proce-
dure stated above and to be stated hereafter shall be
entirely applicable to them. And taxes called yay-
lakie and kishlakie shall be taken from the owners of
these two kinds of yaylaks and kishlaks according to
their means.
25. ^Yithout the permission of the official a person Land not
cannot make into a garden -or vineyard (53) the land ve rted.
he possesses by planting vines and different kinds of
fruit trees. Even if he has done so without per-
mission the Government has the power during three
years to make him pull them up (54). If three years
have passed, and the trees have arrived at a stage to
v
14 The Ottoman Land Code.
Vineyards be a source of benefit to him, they should be left as
orchards, they are; but the fruit trees planted without the
permission of the official and which have been left for*
more than three years, and those planted with the
permission of the official are not subject to the land,
Tithe to be but are the freehold 'property of the owner, tithe
not ' shall be taken every year on their produce. Mukata
Mukata. canno t be assessed on the lands of these gardens and
vineyards on which tithe is taken on the produce of
the trees.
Ownership 26. If a person has grafted the trees growing natu-
gnfted. ra ^y on tne l an( l possessed by him independently or
in partnership such trees become his freehold property, .
and they shall not be interfered with by his partner or
by the official : only the lawful tithe shall be taken on
their annual produce.
Only owner 27. Without the permission of the owner a stranger
a has no right to graft the trees growing naturally on
the land possessed by a person and make them his
freehold property. If anybody is about to graft them
the owner can prevent him. If they have been
grafted the owner has the power through the official
to have the trees cut off at the place where they have
been grafted (55).
28. Fructiferous and non-fructiferous trees, such as
the palamud (56), walnut, chestnut, gurgen (57) and
'Land Law. 15
oak (58), growing naturally on Arazi Mirie are subject Fruit, &c.
to the land (59), and the profit belongs to the owner
*)f the land. But the lawful tithe shall be taken
for the Government, on the produce of fructiferous
trees. The trees of this kind which grow naturally Trees not
cannot be cut down or pulled up by the owner or a e _
or by a stranger. If they have been, the value o f stroyetL
such tree when standing (60) shall be taken for the
Treasury from the person who cut it down or pulled
it up.
NOTE. A law having been passed by Imperial Trade, dated 16,
Shevat, 1286, stating that the standing value of wild trees belongs
to the owner of the land ; the authority of the sentence written in
lhi"s 28th article concerning the said value belonging to the
Government is abolished.
29. If a person has created the land which he Ownership
possesses into a wood by planting on it with the
permission of the official non-fructiferous trees, the
trees become his freehold property, and only he has
the right to cut them down and pull them up. If
anybody else cuts them down he shall pay the value
of the tree when standing. An ijarei zemin equiva-
lent to the tithe is fixed on the land occupied by this
kind of wood, consideration being paid to its difference
in demand according to locality (61).
30. Woods, other than Jibal Mubah (62) and woods
and forests assigned to the inhabitants of villages,
1 6 The Ottoman Latid Code.
ui.i on which the trees grow naturally and which have
; by been possessed as places for collecting firewood
l;l '' u - ancestrally or by cession or sale from another, shalfc
be held by Tapu and only the owner can cut down
the trees. It' a stranger is about to cut them down he
can prevent him from 'doing so through the official.
If lie has cut them down, the value of the trees when
ling shall be taken for the Treasury. An ijarei
Tithe. zcmin equivalent to the tithe shall be taken by the
Government for the land occupied by these woods.
The procedure belonging to other lands (63) shall be
followed concerning this category of woods also.
. See note to Art. 28. See also the Regulations, Destur,
Vol. III., p. 300, concerning the mode of examination and
!//>/>! ;<,n of title-deeds issued before the 11. Sheval, 1286, date of
I he Forest Law Destur, Vol. IL,p. 404, to persons
claiming possession of woods of this kind.
31. Without the permission of the official, new
lgs ' buildings cannot be ejected on Arazi Mirie. If they
have been erected the Government can have them
demolished (64).
ings . h 1 it is necessary that buildings should be
. ;ive . erected by the owner on Arazi Mirie, such buildings
as Chiftlik houses, mills, sheep-folds, sheds, stores,
staples, straw-barns and farm-yards (65), can be erected
through the official, but, in accordance with the value of
; ,ind locally, an ijarei zemin equivalent to the tithe
Land Law. 17
shall he lixi-d to he taken annually. It depends on
tin- sjM-.-ial onh-r of the Sultan for habitations to
be made on raw land on which there is not tin- iation
of a building and form it into a village or quarter by
erecting m j w buildings, only the permission of the
official is not sufficient.
IE. The fees to be taken on the sale of raw Arazi J7 /'//''
>ife to be made into a Quarter, are stated in the Vezirial letter
Destur, Vol. IV., p. 420.
33. Neither the owner nor another may bury a Burial of
corpse on land held by Tapu. In case any one has
done so, if the buried corpse has not been reduced
to dust, the official shall have it removed to another
place. If the corpse has been reduced to dust the
surface shall be levelled.
34. Lands which have been* held by Tapu, indepen- Threshing-
dently or in partnership, and which have been created sa it-pans
into threshing-floors (66) by separation from Arazi
Mirie, shall be subject to the same procedure as other
land. The lands separated from 'Arazi Mirie, and
occupied by salt-pans, are also of this category. For
these kinds of lands a Mukatai zemin equivalent to
the tithe shall be taken annually.
ISoTE. Salt-pans being under a monopoly, the authority of this
irticle concerning them is abrogated.
1 8 The Ottoman Land Code.
Law 35. If another person without right erects buildings,
trespass. or plants trees and vines on land which is actually
possessed by a person, the owner has the right to have.
such buildings, vines, and trees demolished, or pulled
up through the official (67).
partners. If one of the partners, without the permission of the
other, unlawfully erects buildings or plants trees on
the whole of the land held in partnership, this pro-
cedure shall be followed regarding the share of the
other partner (68).
Conflicting But if a person has in his possession a valid title-deed
claims of -i . -i i /> > -i n
r and obtained by one of the means of acquiring possession,
of tenant : guc j 1 ag cess i on or sa l e from another, or conferred on
how ad-
justed. him by the Government under the impression that it
was Mahlul, or inheritance from father or mother, and
after having erected buildings or planted trees on the
land held by him, a person appears and asserts his
right to the land Occupied by such buildings or trees,
if he proves his right Jo possession, and the value of
the buildings and trees, after having been demolished
or pulled up, is more than the value of the land, the
actual value of the land shall be given to the person
who proves his right, and the land, buildings, and
trees shall be left in the possession of their owner. It
the value of th# land is more than the value of the
buildings and %'ees, the value of the buildings and
trees shall be given to the owner if he deserves to
have them eradicated, and the buildings and trees
shall ''be given to the person who proves his right (69).
Land Law. 19
If one of the partners, without the permission of the Claims of
others, erects buildings or plants trees on a part of howTd-
the land owned in partnership, the land is divided in J usted -
accordance with Art. 15 ; and if the land on which the
buildings and trees are falls to the share of the
partner (who did not build or' plant them), the proce-
dure (para. 3 of the present Art.) (70) shall be carried
out.
2O The Ottoman Land Code.
OH^PTEE II.
CONCERNING THE MODE OF SALE, CESSION, OR
ALIENATION (F^RAGH) OF ARAZI MIRIE" (71).
Mode of 36. The owner can alienate the land which he holds
of YS by Tapu to the person whom he chooses, either
gratis or for a known price. The alienation of any
Arazi Mirie without obtaining the permission and
assistance of the official is not valid, and the possession
of the alienee in the land taken by him in every
case depends on the permission of the official. If the
alienee dies without the official having given per-
mission, the alienor 'can become owner of his land as
before. If the alienor t dies, and if he has heirs as
Devolution under (72), having the right of inheritance, it succeeds
lands. to them ; and, if he has not, it becomes the right of
Tapu (73) and the alienee receives from the estate of
the alienor the price which he paid. Likewise, the
exchange of land is also always dependent on the
permission of the official (74). When the owner of
land is going to sell or give it with the permission of
Purchaser, the official, the presence of the purchaser, or some
present. one on n ^ s behalf (75), is necessary, in order to buy or
receive it.
Land Law. 21
37. Only the permission of the official is sufficient Leave of
(76) in the sale of Arazi Miriu. After a person has sold
to another, with the permission of the official, his
land, if the person who sold the land dies without the
purchaser having taken out Tapu Sened the sale is
valid and the land cannot be looked upon as Mahlul.
38. After a person has alienated to another his land Convey-
ance with-
gratis that is to say, without naming a price he shall out con-
not have the power subsequently to claim a price for S1(
the land, nor have his heirs the power to do so on his
death. After having sold to another, with the per-
mission of the official, for a known price, if the said
price has not been paid by the purchaser to the Failure to
vendor, the latter, and after his death his heirs having ^deration
the right to inheritance, have the right to take back mone J'-
the land from the purchaser, or, if he is dead, from
his heirs having the right of inheritance. If the said
price has been paid, no right remains to claim restitu-
tion as above (77).
39. After a person has alienated to another his land Convey-
gratis or for a known value by t a decisively valid binding.
alienation, with the permission of the official, he cannot
retract from the alienation (78).
40. After a person, with the permission of the Protection
official, has alienated his land to another, if he also alienation.
alienates it to another again, without the permission
of the alienee, the second alienation is not valid (79).
22 The Ottoman Land Code. < '
Lands of 41. A person holding land in partnership cannot,
without the permission of his partner, alienate his share
gratis or for a price ; if he has alienated it, his partner
Limitation, has, during five years, the right to take such share from
the person who takes it for its equivalent value (Bedel
Misl) at the time when he wants it. And even if this
five years lapses, by such disabilities as minority,
insanity, or travelling in a distant country, after such
period has elapsed the right to claim it does not
remain. And if at the time of the alienation, the
See p. 240. said partner has lost his right by refusing to give
permission or to take it when it was offered to him, he
cannot afterwards claim it.
NOTE. Appendix dated 19. Shaban, 1291, 18. September, 1290,
Destur, Vol. III., p. 457. " If during this jive years the partner
dies, his heirs having the right of inheritance, have the right and the
power to take such land in the manner stated from the alienee. If
the alienee is dead, the partner shall have the right and the poiver to
take such land in the manner stated, from the alienee's heirs having
the right to inheritance. If beth the partner and alienee are dead,
the partner's heirs having the right to inheritance, have the right and
the power to take such land in the manner stated from the alienee's
heirs, having the right to inheritance.
Alienation 42. When one of/the partners of three or more than
three is about to alienate his share to another, one of the
partners cannot have the preference over the others.
If the others are candidates also, they have the right
to take such share in partnership. If one of the
said partners alienates to another partner the whole of
his share, the other partner can take the share which
Land Law.
falls to him of such share, and the rules stated in
the foregoing article are also applicable concerning
these.
43. When a person alienates unlawfully to another, Unauthor-
with the permission of the official, the land of another ^tion^ 1
or of his partner, without having a Vekialet from the
owner to alienate, if the owner of such land does not
agree to such alienation he can, through the official,
take back his land from the person who unlawfully
bought it (80).
44. The owner of land on which there are trees or Preference
buildings, the freehold property of another, and which f\?
is held and cultivated in subjection to such trees or tre f or
buildings
buildings, cannot alienate it to another gratis, or for a thereon,
price, while the owner of the trees and buildings is
willing to take it for its Tapu value. If he has alienated
it he has the power to claim, such land during ten
years, and he has the right to take it, for its equiva-
lent value (Bedel Misl), at the time when he asks for
it. And in this matter such disabilities as minority,
insanity, and travelling in a distant country, are not
valid (81).
45. If a person holding land by Tapu within the Alienation
boundary of one village, alienates it to a person who Bother *
is an inhabitant of another village, the inhabitants villa e -
of the village in which the land is, having need of
24 The Ottoman Land Code.
it, have the power to claim it during one year for its
equivalent value (Bedel Misl) (82).
<
NO pre- 46. Pre-emption, which is applicable to freehold
adjacent 7 property (Emlak), is not applicable to Arazi Mirie and
Mevkufe. That is, if a person alienates to another
the land which he owns for a known price, the person
who has the same boundary has not got the power
to claim it, saying, "I will take it for that
price " (83).
NO remedy 47. In land which has been alienated as so many
as to area, donums or ziras (84), the number of donums or ziras
shall be taken into account (85) ; but in land which
has been alienated, and the boundaries have been fixed
and pointed out if the number of donums and ziras
have been stated or not, the number of donums and
ziras shall not be taken into account, and attention
shall only be paid to the boundaries. For instance, a
person after having alienated to another his land by
showing and fixing the boundaries, and saying it comes
to twenty-five donums, on its becoming apparent that
the said land is thirty-two donums he cannot meddle
with the alienee by saying, " Separate the seven
donums and I will take them back," or " I want more
money," and if the alienor dies after having alienated
it, his children, father or mother are not able to
meddle with the alienee either. Likewise, if the said
land only amounts to eighteen donums, the alienee
Land Lazu. 25
cannot reclaim from the alienation-money the amount
proportionate to seven donums (86).
48. When a person alienates his land to another, the Trees,
trees growing naturally thereon ire subject to the land,
and in every case are included in the alienation (87).
But the alienee has no right to take 'possession of
the freehold trees growing on such land without hav-
ing purchased them by so stating at the time of
alienation (88).
49. If the owners of freehold (]\Iulk) trees, vineyards, Mulk
and buildings which have been planted and built sub- trees,' vfne
sequently through the medium of the official on land yards> &a
which is possessed by Tapu, sell them to another,
the land also is caused to be alienated through the
medium of the official to the person frho buys the trees,
vineyards and buildings. The same procedure is
followed with regard to woods of which the land
belongs to the State, and the trees mulk (89).
50. The alienation to others by ' minors, lunatics, Disability
and imbeciles of the lands belonging to them is not
valid, if they have alienated them and die before &c -
their majority or cure : if they have any heirs having
the right of inheritance as stated hereafter, they are
inherited by them, if they have none, it becomes the
right of Tapu (90).
26 The Ottoman Land Code.
Purchase 51. Minors, lunatics, or imbeciles cannot buy and .
!la n tics, tS ' have land conferred on them (91), but if it is evident
&c - that it will be a source of benefit to them, their parents
or guardians as parents or guardians can purchase land
for them (92).
Sale of pro- 52. The parents or guardians of minors cannot
infants^ alienate to another for debt or maintenance or any
lunatics, other cause the land which belongs to the minors by
inheritance from their father or mother or by any other
means. And they cannot pass it on to themselves. If
they have alienated it to another, or if they have
passed it on to themselves, the minors can, through
the medium of the official, take back the land from
the person in whose possession it is during ten years
after they have attained their majority and are capable
of possessing it, and if they ha*ve died before attaining
their majority the said land passes to their heirs having
the right of inheritance, if they have any. If they
have none it becomes the right of Tapu (93). But
if the Chiftliks of minors are not administered by
their guardians in such a way as not to cause them
loss, and it has been ascertained that the appurten-
ances being costly by their destruction and loss, total
loss will be caused to the minors, it is necessary that
How to be they should be sold in accordance with the permission
of the Sheri ; if it is proved by the Sheri that by reason
of the separation of the buildings and other appur-
tenances from the land the remainder of the land only
Land Law. 27
. is injurious to the minors, a permission Hujet will be
got from the Sheri, and the appurtenances with even
the land can be sold for their equivalent and true
value. After having been sold in the manner stated
above no right remains with the minors to claim the Sale bind-
restitution and take possession of the land and appur- 1E
tenances after they become of age. The procedure
to be followed with regard to the land of lunatics and
imbeciles is also as above (94).
53. If the owner of gardens and vineyards, which Sale of
have been created by trees and vines being planted
on Arazi Mirie and Mevkufe' or of buildings which
have been erected, be a minor, lunatic, or imbecile, his
parents or guardians can sell to another this kind of
vineyards, gardens, and buildings in accordance with
the powers granted by the Sheri, and they may also
alienate the lands in subjection to such freehold
property (95).
28 The Ottoman Land Code.
CHAPTEK III.
CONCERNING THE MODE OF TRANSMISSION BY INHERIT-
ANCE OF ARAZI MIRIE (96).
Devolution 54. On the death of one of the owners of Arazi Mirie
Mirie. an( l Mevkufe the land belonging to him or her (97)
goes by inheritance equally, gratis, and without
price to his male and female children, whether they
are in the place where the land is or whether they are
in another country. If there is only a male or only a
female child it is likewise transmitted by inheritance
independently without price (98). If one of the owners
of land dies and his wife is pregnant such land shall
be kept until the birj?]l of the child (99).
NOTE. The provisions of this article with regard to tie mode of
inheritance have been annulltd by the provision* of the law dated
17 Muharem, 1284, conce- ning the mode of inheritance of Arazi
Mirie.
Descent to 55. The land of owners of Arazi Mirie and Mevkufe
parent. W J IQ j e w fthout children is transmitted by inheritance
gratis, in accordance with the preceding article to his
father, if alive, if not to his mother (100). (See note
to Art. 54.)
Land Law. 29
56. If some of the children of the deceased exist Right of
i i absent
and are present, and some of the children are absent, in child or
a state of total absence (Ghaibeti Munkataa), his land parent *
shall be given to those existing and present (101) ; but if
the absent one appears within three years from the date
of the death of his father or mother, or if it is proved
that he is alive, he takes his share in such land. The
procedure with regard to father and mother is the
same as this (102). (See note to Art. 54.)
57. The land of a person who has been absent in a Right of
state of total absence (Gaibeti Munkataa) for three of absent
years, and whose existence or death is unknown, shall, owner -
as stated in the preceding article, be, inherited by his
children, if he has no children, by his father, and if he
has no father, by his mother. If he has none of these
it becomes the right of Tapu, that is to say, if there
are any persons possessing the right to Tapu as stated
hereafter, it shall be conferred on them for the Tapu
value (Misl), if there are none/ by auction on the
candidate (103). (See note to Art. 54.)
58. The land of the father, mother or children of a Privilege
person who is a soldier in the Imperial Army, and who
is actually serving in the army in another country,
shall be inherited by him whether his existence be
known or whether he be absent in a state of total
absence (Gaibeti Munkataa), and such land cannot be
conferred on any person unless his death be legally
30 The Ottoman Lund Code.
Privilege proved ; if it has been conferred, such person, at what-
L to lands. ever time he appears, has the power to take possession*
of the land which he has inherited by taking it frem
whoever he may find in possession. But in order to
secure the taxes due on the land, if he has no relations
or trustees to manage his property, it may be given
Taxes. to another person to be cultivated, and by whom the
taxes due on it shall be paid (104). (See note to
Art. 54.)
CHAPTER IV.
CONCERNING THE MAHLULAT (VACANCY, ESCHEATION)
OF ARAZI MIRIE (105).
59. If the owner of land die without leaving child- Death of
ren, father or mother, his land shall be given : without
children
i. To his brother by the same parents or by surviving.
the same father for its Tapu value (Misl), that is Right of
to say for a value fixed by impartial experts who and consan-
know its productive power according to locality frother*
and its extent, number of donums, and boundaries.
This heir has during ten years the right to claim
this land and to demand its restitution.
ii. If he has no brother by the same parents or Right of
the same father, it shall be given to his sister by andconsan-
the same parents or by the same father for its g uinec *
J sister.
Tapu value, whether she resides or not in the
town or village where the land is situated. Her
right to vindication extends to five years.
iii. If he has no sister by the same parents or
by the same father, it shall be given for its Tapu
3 2
The Ottoman Land Code.
Right of
grand-
children,
i.e. children
of pre-
deceased
son.
Right of
husband or
wife.
Right of
uterine
brothers
and sisters.
Right of
grand-
children,
i.e. children
of pre-
deceased
daughter.
Right of
owner of
Mulk trees
or build-
ings.
value in equal portions to the male and female
children of the son. Their right of vindication*
extends to ten years.
iv. If there are no male or female children of the
son, it shall be given for its Tapu value to the
surviving husband or wife. Their right to vindi-
cation is for ten years.
v. On failure of surviving husband or wife, it shall
be given for its Tapu value and in equal portions
to the brothers and sisters by the same mother.
Their right to vindication extends to five years.
vi. On failure of brother or sister by the same
mother, it shall be given for its Tapu value and
in equal portions to the male and female children
of the daughter. Their right of vindication lasts
five years.
vii. On failure o'f these, if on the land there are
Mulk trees or buildings, the said land shall be
given for its Tapu value and in equal portions to
the persons who inherit the trees or buildings.
Their right of vindication extends to ten years.
There are no other persons than the above who,
being relations, possess the right of Tapu (106).
viii. On failure of heirs included in the above
categories, the land is given for its Tapu value
Land Lazv.
o o
to the partners or co-interested. Their right to
vindication is for five years (107).
ix. On failure of partners or co-interested, the Disposal of
land is given for its Tapu value to inhabitants of failure of
village in which it is situate'who have need of it. heirs ' &c *
Their right of vindication is for one year. If several
inhabitants of the said village have need of the
land and all of them are candidates for the land
which has become the right of Tapu as above
stated, the said land shall be divided, if there be
no inconvehiency in it, and each person shall
receive the grant of a share. But if the land is not
susceptible of division, or if there be any objection
to its division, it shall be given to the person to
whom it is most necessary. If all have an equal
want of it, it shall be given to the one amon.
them who has served personally and actively in the Privilege
army, and, having served his^tirne, has returned to
his home. On the failure of a person with these
qualifications lots shall be drawn, and the land shall
be given to him to whom fate has given it.
After it has been thus a warded,, the land cannot Finality of
in any way be demanded or claimed by any other av
person (108). (See note to Art. 54.)
60. If the owner of the land has died without leav-
ing heirs who possess the right of inheritance, that is,
children, father or mother, also no person possessing
D
34 The Ottoman Land Code.
On cessor the right of Tapu (109) as above mentioned, or, i ;
Tapufland having left any, they lose their right of Tapu in the
MahiuT ^ anc ^ ky abstaining from taking it for its Tapu valu*,
the land then becomes simple Mahlul and shall be
conferred by auction * on the candidate (110). But if
the persons possessing the right of Tapu are minors
Protection or insane, the losing of their right, either by them-
hmatics, ' selves or by their parents or guardians, is not valid
(111). (See note to Art. 54.)
NOTE.* Concerning a non-Mussulman wily'ect also taking part
on an equal scale in such auction. See Law, dated 7. Muharem, 1293.
Period for 61. The period fixed for the above persons possess-
assertion . .
of right to mg the right to Tapu to vindicate it, commences from
the date of the death of the owner of the land, and
during that time whether the land has been given to
another person or not, the said persons may have it
granted to them by the Government on paying the
Tapu value at the time of their claim. After these
periods have expire^' or the said persons have lost
their rights their claims cannot be admitted. The
disabilities such as minority, insanity, or absence on a
journey in a distant country, are not valid in actions
for vindication o'f the right to Tapu, even if for these
reasons they allow the periods fixed to lapse. On their
lapsing, the right to Tapu is lost (112). (See note to
Art. 54.)
62. If one of the persons who possess the right to
Tapu in equal degree with others suffers the forfeiture
Land Lazv. 35
of the right by refusing to take for its Tapu value Forfeiture
'Iris share of the vacant laud, the other may take the person (.1
whole of the laud for its Tapu value (113). (See note jf^ to
to Art. 54.)
63. If it has not been possible to transfer the Sale sub-
vacant land to the possessors of the right to Tapu on rights of
account of their being minors, insane or travelling, in a J^Ttics
distant country, its Tapu will not be delayed, but on &c -
the understanding that the former according to their
degree have power to claim it within the time fixed,
it will be given to the possessor of the right to Tapu
of a like or lower degree, if any, for, as is customary,
its Tapu value. If there are none,.or the right has
been allowed to lapse, it will be put up to auction
and given to the candidate (114). (See note to
Art. 54.)
64. If one of the first degree of the nine classes of Successive
possessors of the right to Tapu abstains from taking the pgf "ns f
land to which he has a right to Tapu for its Tapu entltled -
value and allows his right to lapse, it is offered to those
t in the second degree, and if they abstain it is offered in
turn to every degree up to the last, and if they all ab-
stain then it is given by auction to the candidate (115).
If one of the possessors of the right to Tapu dies before
Tapuing the land to which he has a right to Tapu, his
right to Tapu does not revert to his children and other
\ heirs (116). (See note to Art. 54.)
D 2
36
The Oi toman Land Code.
Ki-ht of 65. If the possessors of the right to Tapu are minors,
of infanT i nsane > or imbecile, and if it be any advantage to them,
or lunatic, their parents or guardians may take the land to whick
they possess a right to Tapu for its Tapu value (117).
(See note to Art. 54.)
huk)
Preferen- 66. If the owner of land, on which there are Mulk
trees anc ^ buildings belonging to a stranger ( a ), and
wn i c h * s cultivated and possessed in subjection to those
trees and buildings, dies ( b ) without having anyone who
possesses the right to Tapu aforementioned, the owner
of the trees and buildings shall have the preference to
any other, and, if he desires, it shall be transferred to
him for its equivalent value (Bedel Misl), and if with-
out being oifered to him it has been given to another
he shall have the right to claim it for ten years for the
equivalent value (Bedel Misl) ^at the time of claim (118).
(See note to Art. 54.)
NOTE.(") Tire causes of a stranger's possession in this way are
given in Art. 35. ( b ) According to Art. 44, even if the owner is
alive he cannot sell the land to someone e/sf, he must alienate it to
that person.
Privilege
67. To persons who have the right to Tapu, and
who are soldiers who are proved to have served
actually and personally in the ranks of the Kegular
Army (Asaker Nizamie), five donums of the land to
which they possess the right to Tapu shall be given
gratis and without payment of value (Bedel) : for any
Land Law. 37
excess over five donums the provisions of the law with
regard to other possessors of the right to Tapu shall
be? carried out (119). (See note to Art. 54.)
68. If the owner of any arable land does not Disposal
cultivate it himself or cause it to be cultivated by i an( i.
another by lending or letting it, but allows it to lie
fallow for three successive years without having proved
any valid excuse, such as allowing it to rest for one or
two years according to its degree of capability, or for
more than one or two years in an exceptional case
according to locality (120), or the necessity of leaving
it fallow until it has acquired the power of cultiva-
tion (121) after the water which iaundated it for a
time has receded, or being a prisoner of war, such
land, whether the owner be in the place where the land
is or at a distance travelling (122), becomes the right
of Tapu. If the former owner wishes it to be trans- Recovery
ferred to him again it may ba % transferred to him i os t* n<
for its equivalent value (Bedel Misl). If he does not
wish it, then it is transferred by auction to the
candidate (123).
69. Land belonging to anyone which for a long Right of
time has been inundated, and from which the water owTe^to
has receded, does not become by this fact the right land which
m has been
01 lapu, the ancient owner takes possession of it flooded.
as before (124). If the old owner is dead, his
children, father or mother take possession of it; on
The Ottoman Land Code.
Disposal of failure of these the right to Tapu shall be given for
has been* ^ s Tapu value to the owner thereof (125). After
flooded. fo e wa ter has receded and the land has acquired
the power of cultivation, if the owner, or those who
have got the right of inheritance (Hak Intikal) as
aforesaid do not utilise it, and without excuse leave
it uncultivated during three successive years, it
shall then become the right of Tapu. (See note to
Art. 54.)
Preserva- 70. If a person, after having abandoned his land for
rights of ^ wo consecutive years without excuse, alienates it
alienee or | o ano ther, or dies, and his children, father or mother
heirs.
inherit it, and the alienee or those who have the
right of inheritance also leave it uncultivated without
excuse for the following one or two years, that land
does not become the right- of Tapu. (See note to
Art. 54.)
Heirs to 71. If the possessor of lands which have been proved
vaLl of** ^ nave been left uncultivated without excuse for three
untiiied consecutive years, as aforesaid, dies at the end of three
land in *
certain years, before the land has been given to another by the
official, and leaves children, father or mother, the
lands will not be inherited by the latter gratis, but
they will be offered to them for the Tapu value,
and in case they refuse, or if the said possessor has
died without heirs having the right to inheritance,
they will be put up to auction and will be given to
Land Law. 39
the bidder (120) without tho possessor of the right
to Tapu being sought for. (See note to Art. 54.)
7*2. If all or part of the inhabitants of a town or Abandoned
village quit the place for legitimate reasons, the land
belonging to them does not become the right of
Tapu, but if the abandonment of the country take
place without valid motive,, or if the inhabitants do
not return within three years from the time when the
legitimate reasons which forced them to quit have
ceased, and if they thus leave the land uncultivated,
it shall then become the right of Tapu.
73. Land belonging to a soldier in the Imperial Preserva-
Army who is actually and personally employed in the r "hts of
military service in another country, whether the land militar . v -
be cultivated by letting or lending it, or whether it
remain in statu quo and non-productive, shall not
become the right of Tapu so -long as the decease of
the owner shall not have been proved. If by chance
it has been given to another, the soldier on returning
to his home after the end of his time of service may
take it from whomsoever may hold if (127).
74. If a person whose existence is known, and who Disposal of
is travelling in another country, inherits land from his
parents or children, and if he does not come himself to
cultivate the land he has inherited, or does not depute
in writing or otherwise some one to cultivate it and
4O The Ottoman Land Code. , >
leaves it idle for three successive years without excuse,
such laud becomes the right of Tapu. (See note to
Art. 54.)
Devolution 75. If at the death of the owner of the laud it is
wheTheir unknown whether the absent (Gaibeti munkataa) (128)
is absent. ne i rs possessing the right of inheritance (Hak Inti-
kal), be dead or alive, the said land becomes the right
of Tapu. If, however, the heir appears within three
years, counting from the day of the decease of
the person from whom he inherits, he has the right
to take, free of expense, possession of the land ; if
he does not appear before the end of this term he is
no longer able to ckdin it.
Manage- 76. Land belonging to minors, idiots or imbeciles
lamfbe- cannot in any case become the right of Tapu on
longing to account of not being cultivated. If the guardians
minors,
idiots, &c. without excuse do not cultivate it themselves or cause
it to be cultivated by others for three successive
years, the said guardians will be invited by the Official
(Memour) to cultivate it themselves or to have it
cultivated by.oth'ers. If they abstain or refuse to
cultivate it, with the sole object of preserving it from
a state of non-cultivation, the land shall be let by the
Official to whoever wants it for its equivalent rent
(Ijare-i-Mislie) ; the rent fixed to be paid by the tenant,
shall be paid to the guardians for the minors, idiots,
or imbeciles. After attaining their majority, or after
Land Law. 41
recovering their senses, they can take back the lands
from the hands of the tenant (129).
77. If it be proved that a possessor of the right to Disposal of
Tapu of the first degree, without having obtained C as e of
the vacant land from the Government, conceals and llle s al .
possession.
holds it unlawfully for a time less than ten years,
the land shall be granted to him on his paying its
Tapu value at that time. If he does not wish it, it
will be granted to another possessor of the right to
Tapu, if any, for whom the delay fixed according to
his degree shall not have passed. If there are none,
or if there are any who have lost their right, it
shall be put up to auction and gwen to the candi-
date.* If, as above, the person proved to have held
and cultivated unlawfully for less than ten years be
a stranger, the land shall be taken from him and
granted to the possessor of the riglit to Tapu for its
Tapu value at that time (130)^ If there be no pos-
sessor of the right to Tapu or if he has lost his right,
it shall be given by auction to the candidate. (See
note to Art. 54.)
NOTE.* Concerning a non-Mussulman subject also taking part
on an equal scale in such auction, see Law dated 7. Muharem, 1203,
and though the auction should be carried out in accordance with
Art. 18 of the Tapu Law. the said article has been amended by a
fresh article dated 27. Sheval, 1303.
78. If a person has possessed Arazi Mirie and Acquisition
Mevkufe for ten years without disturbance his pre- lengthTof
possession.
42 The Ottoman Land Code. *
scriptive right (Hak Karar) becomes proved, and
whether he has a title-deed or not such land cannot be
looked upon as Mahlul, but a new Tapu Sened should
be given to him gratis. But if he admits that such
land was Mahlul and he took it without right, no
consideration will be paid to the passage of time, but
the land will be offered to him for its Tapu value,
and if he refuses it will be sold by auction to the
candidate (131).
Rights of 79. Nothing shall be claimed as rent (Ijri Misl) or
hddswTth- as Decreased value of land (Noksan Arz), from any
out legal person who has arbitrarily taken vacant (Mahlul)
lands, Mirie or Mevkufe, and has cultivated them, as
is mentioned in the two preceding articles, and has
paid the taxes due by the land (132).
Ownership 80. If the owner of an arable field dies after hav-
sownr i R g sown ^ without leaving heirs who possess the
deceased right of inheritance (JIak Intikal), and the said field
(embie- has been granted by the Official to the person possess-
ts) ' ing the right to Tapu, or to any other candidate,
the crops growing on that land will be considered as
part of the estate 'of the deceased, and the person who
takes the land has no right to have them pulled up
nor to claim any fee from the heirs. It will be the
same thing with the grass which grows by cultivation
or irrigation. As to the grass which grows naturally
without the intervention of the work of the deceased,
it will not go to the heirs.
Land Law. 43
81. On the death of the owner of the vineyards and Osvnership
gardens created, and the freehold (ILulk) Buildings yards, & c .,
erected on Arazi Mirie possessed by Tapu, on which
freehold Hlulk) trees and vines have subsequently ings erected
, by deceased
been planted with the permission of the official tenant.
(Meraour), such trees, vines and buildings, after
having been inherited like other property by the
heirs of the deceased, the only fee taken shall be
succession duty on the assessed value of the sites of
such buildings, trees and vines. The land, in propor-
tion to the share of the trees, vines and buildings
which falls to each heir, shall be transferred to them
gratis, and on the records in the Imperial Defter
Khane (133) being corrected, a riote will be written
in the margin of the title-deeds which are kept (134).
XOTE. The authority ofjhe sentence "a note will be ivritti,
the iKurtjin of the title-deeds u'hich are kept" 1 ' turitten in this article
is annulled in accordance v:ith Art. 3 of the Instructions, dated
7. oAa&tm, 1276, concerning Ta^u
82. If mills, enclosures, sheepfolds or other free- Disposal of
hold (Mulk) buildings, constructed on Arz 3Iiri held f on ^
by Tapu, are in ruins and leave no sign of construction, ^ and
the site of such buildings becomes the right of Tapu. erections.
It shall be granted to the owner of the buildings if he
ask for it, if not, it shall be given to another. But if
such lands shall have previously passed into the
possession of the owner of these buildings by inherit-
ance or otherwise, and if he is paying their fixed rent
44 The Ottoman Land Code. ,
(Ijarei Maktuaa) to the Government, such lands can-
not be taken away from him nor opposition shown to
his possession (135). (See note to Art. 54.)
Disposal of 83. If any of the trees and vines of gardens and
former vineyards, created by planting trees and vines freehold
vineyards. (]\| u ik) on Arz Miri held by Tapu, become dry or are
pulled up, and if no traces of them remain, the ground
becomes the right of Tapu. It shall be given to the
owner of the said trees and vines if he wish it, if not,
it shall be given to some other candidate. But if the
Devolution j anc [ o f sucn category was previously inherited from
sites. parents or children, or was by other means formerly
in the possession of 'the owner of the trees and vines,
it shall not be taken out of the hands of the possessor,
nor shall any objection be made to his possessing it
(136). (See note to Art. 54.) .
Disposal 84. Any summer (,yaylak) or winter (kishlak)
P as t ura g e held by Tapu, which without excuse shall
not have been occupied during the season for three
consecutive years, and of which the dues have not
been paid, shall become the right of Tapu (137).
Disposal of 85. If a meadow (Chayir) held by Tapu, and on
whose produce tithe has been taken ab antique,
held by remains idle for three consecutive years without
lapu;
excuse, and the grass is not reaped and the tithe is
not paid, it becomes the right of the Tapu (138).
Land Law. 45
86. If at the time when a possessor of the right to Paramount
m , rights of
Tapu is about to receive the land by paying the person
Tapu value a stranger presents himself and offers
more than the Tapu value, no attention is to be paid
to this offer (139). (See Note to Art. 54.)
87. If, after vacant (Mahlul) Mirie or Mevkufe Rights of
land has been transferred to a person for its equivalent bidder for
value (Bedel Misl) ascertained at auction, another J ?
person appears and offers a higher price, no interfer-
ence can be made with the former on the ground that
the Sened has not yet been issued, and the land
taken over by him cannot be taken away from him.
But if, after the vacant land (Arazi Mahlule) has been
* transferred to a person, it becomes evident and proved
that it has been transferred for a much less price
than its Tapu value, such person will be required
to complete its Tapu Value at the time of transfer
within ten years from the date of transfer, and if he
does not do so the amount paiA by him before will be
returned to him and the land transferred to a person
who wishes it. If ten years from the date of transfer Acquisition
have elapsed, such person will not be disturbed, and ]^ l ^ J
* the land taken over by him will not be taken away time
from him. The same procedure will also be followed
with regard to Arazi Mahlule which has been trans-
ferred to a person possessing the right to Tapu (140)
for its Tapu value.
88. The person employed as a Tapu official in a
46 The Ottoman Land Code.
*
Disabilities Kaza cannot during the time of his employment
official and take over vacant land (Mahlule), or land which be-
reiatives comes the right of Tapu, nor can he hand it over to
his children, brother, sister, father, mother, wife,
servant, slave and dependents, but if he becomes the
possessor of land inherited from his father, mother, or
children (141), or if he is the possessor of the right to
Tapu he can take over the land in the customary-
manner through the medium of the Tapu official of
another Kaza. (See note to Art. 54.)
Disposal of 89. Buildings, the site of which is Arz Miri, and
a re eS ATz 1C the edifice vakf to an object having become ruined,
f^iu n f an( ^ a ^ er no s ig n f building remains, if the trustee
trustee to (Mutevelli) does not repair them and also does not
pay the ground rent (Ijarei Zemin) to the Govern-
ment, such sites shall be taken out of the hands
of the Mutevelli and given 'to the candidate. If
the Mutevelli repairs them or pays the fixed ground
rent (Mukatai Zemin)' to the Government, he shall
not be interfered with, and they shall be left in his
hands. The same procedure shall also be followed
in places where the site is Arazi Mevkufe and the
building vakf to another object (142).
NOTE. See Note to Art. 90.
Disposal of 90. Gardens and vineyards, the site of which is
sites on" Arz Miri, and the vines and trees vakf to an object
failure of h av i n or become ruined, and after no sign remains of
trustee to
cultivate.
Land Law. 47
the trees and vines, if the person who is Mutevelli of
the vakf does not cultivate the land without excuse
fyr three consecutive years, and does not bring it
back to its original state by planting trees and vines,
such lands become the right of Tapu. The same
procedure will be followed with places of which the
site is Arazi Mevkufe, and the trees and vines vakf to
another object.
. It has been notified by a Mazbata of the Mejele Com-
mission approved by Imperial Trade, dated 22. Muharem, 1300,
that in the event of a case between the Beit ul Mai and a Vakf
relating to the servitude of the land, the claim of the Muteveli of
the Vakf will be heard up to 36 years.
48 The Ottoman Land Code.
BOOK II.
CHAPTEE'I. AEAZI METEUKE.
CHAPTER II. AEAZI MEVAT.
CHAPTER I.
ARAZI METRUKE (144).
Law as to 91. The trees of woods and forests called " Baltalik,"
of*Baltalik devoted specially ah antiquo for tlie benefit and for
woods and ^ e SU ppiy o f W oo,d to a town or village, shall be cut
only by the inhabitants of such town and village ; the
inhabitants of no other town and village have the
right to cut the wood. The trees of woods and forests
devoted specially 'for the benefit and for the supply
of wood ab antiquo to several villages, likewise shall
be cut only by the inhabitants of such villages ; the
inhabitants of other villages cannot cut them. There
is no tax (145) for this category of woods' and forests.
NOTE. See No. 3(>. In accordance with the Regulations, dated
23. Muharem, 1293, Destur, Vol. III., p. 300, if it is ascertained
that the woods and forests left to the inhabitants of villages or
towns are more than their requirements, and the surplus does not
belong to anybody by title-deed, it will be considered as JibalMubah
and taken under administration. In accordance with Art. 25 of
the Forest Law, dated 11. Sheval, 1286, Destur, Vol. 1L, p. 404,
tithe "'ill be taken on the planks cut for trade by the inhabitants of
the villages from the said Baltalyks.
Land Law. 49
92. Part of the woods and forests devoted specially Public
'to the inhabitants of villages cannot be separated fo^t not
a*d granted to a person by Tapu to be held by him
singly or in partnership for the purpose of open- encroached
ing it for cultivation or for making it into a wood.
If there be anyone who does so possess a part of a
wood or forest, the inhabitants have at all times the
power to prevent him from doing so
93. No one can erect buildings or plant trees on a L?\V
public road. If anyone does do so they shall
demolished or pulled up. In fine, a person can in no hi g hwa . vs -
wise have possession of the public road, if anyone has
he shall be stopped (147).
94. Places within or without a town or village, Law for
such as places of worship (148) and squares left for the j^Tcf *~
benefit of the inhabitants for assembling their animals P ublic
spaces.
or putting their carts, being equivalent to public
roads, cannot be bought or sold, nor can buildings be
erected or trees planted on them. Nor can they be
given into the possession of a single person. If there
be anyone who does possess them, the inhabitants can
have him ejected (149).
95. Places registered in the Imperial Defter Khane Law for
as having been left and assigned ab antique for market- ^Tof *"
places and fairs can neither be sold nor bought, nor m * rket an( -
other like
can Seneds be given to a person for him to possess places.
E
50 The Ottoman Land Code.
them by himself. If anyone does possess them he
shall be ejected. But whatever tax is registered
for places of this category shall be paid into tYie
Treasury (150).
96. Threshing- floors left and assigned db antique to
public the inhabitants of a village in general, cannot be sold
floors* 111 ^ nor c ^ earec ^ anc ^ given up to agriculture ; it will not
be permissible to erect any building thereon, and the
possession by Tapu Sened cannot be given to a
person singly or in partnership. If anyone does
possess it the inhabitants can have him ejected. The
inhabitants of another village cannot transport their
crops and thresh them on such threshing-floor (151).
Presewa- 97. A Mera reserved db antique to a village can
common on ty ^ e grazed upon by the animals belonging to the
pasturage, inhabitants of that village ; the inhabitants of another
village cannot drive animals there. A Mera common
ab antique to the inhabitants of two, three or more
villages, can be grazed upon in common by the
animals belonging to the inhabitants of those villages :
it does not matter in the boundaries of what village
it may be, they cannot prevent each other from doing
so. Meras reserved ab antique to the inhabitants of
one village only, or in common to the inhabitants of
several villages, cannot be bought or sold, enclosures,
sheepfolds and other buildings cannot be made on
them, they cannot be created into vineyards or
Land Law. 5 1
by planting trees or vines. If anyone has
erected buildings or planted trees, the inhabitants
can at any time have them demolished or pulled up.
Permission cannot be given to anyone to break them
up for cultivation like other arable land. If anyone
cultivates them he will be ejected. They shall remain
Ueras (152) always.
98. Whatever may be the ab antique extent fixed Limits of
of the land left and considered to be pasture land, this f^Juo be
fixed extent of land is called the pasture land, and no P reserved -
regard will be paid to boundaries fixed subsequently
(153).
99. Whatever may be the number of animals Past.
belonging to a Chiftlik situated in a village or town ot to ^
whose animals have pastured ab antiquo on the pasture t
land of that village or town, that number of animals
cannot be prevented from pasturing. But pasture
lands other than those of the town and village
reserved specially ab antiquo to this category of
Chiftliks are not Arazi Metruke like the pasture
lands left and reserved ab antiquo to the inhabitants
of towns and villages. In Chiftlik pasture lands of
this category only the owner pastures his animals, and
he can prevent others from doing so. Chiftlik 3Ieras
of this kind are possessed by Tapu : they follow the
same procedure as other Arazi Mirie (154), and an
annual rent equivalent to the tithe is taken for them.
E 2
52 The Ottoman Land Code. , ,
Regulation 100. Whatever may be the number of animals pas-
tured by an inhabitant of the village on the Mera
belonging to one village specially or to several villages
collectively, he cannot be prevented from pasturing in
that Mera the young which are afterwards born of
those animals. If this causes crowding to the animals
of the inhabitants of the villages, no inhabitant of the
village has the right to bring additional animals from
outside and pasture them there. A person coming
from outside and establishing himself in the village
by building a new house (yurd) may bring a few
animals from outside and pasture them on the pasture
land of that village, on condition that they shall not
cause crowding or want of food to the animals of the
inhabitants of the village. Whatever may be the
number of animals pastured by an inhabitant of the
village on the pasture land of that village, the person
who subsequently buys the house (yurd) of that person
cannot be prevented from pasturing that number of
animals also there (155).
Exclusive 101. Only the inhabitants of the villages to which
asLi^ned ^ nev are assigned shall benefit by the grass and water
inf/kiTh ^ y a y^ a ^ s an d kishlaks, assigned ab antique to the
laks. inhabitants of one sole village, or of several villages,
and registered in the Imperial Defter Khane, and the
inhabitants of other villages, being strangers, cannot
benefit therefrom. Yaylakie and kishlakie taxes are
taken for the Treasury from the persons, according to
Land La 53
their means, who profit by the grass and water of
yaylaks and kishlaks of this category. And these
yaVlaks and kishlaks assigned to the inhabitants
cannot be bought or sold. And they cannot be
granted into the possession of a person singly. And
they cannot be cultivated without the consent of the
inhabitants (156).
102. Attention will not be paid to prescription in x tr
cases regarding Arazi Metruke such as Woods, Forests,
Public Eoads, Fair and Market Places, Threshino-- time in
respect of
floors, Meras, Kishlaks, and Yaylaks which have been public
left and assigned ah antiquo to the inhabitants (157;.
54 The Ottoman Land Code.
CHAPTER II.
ARAZI MEVAT* (158).
Disposal of 103. Empty (khali) places, such as Otlak (160),
p ernallik (43 ^ kim j (159 ^ Tasini, ( stony place ) ?
and Kuhi (hill), which are not in the possession of
anybody by Tapu (160), and which ab antiquo are not
assigned to the inhabitants of towns and villages,
and which are distant from a town and Tillage, so
that the loud voice of a person cannot be heard from
the extreme inhabited point, are Arazi Mevat ; this
category of land can be opened up newly and created
into arable land,' with the permission of the official,
gratis by the person, having need for it, on condition
that its servitude shall belong to the Treasury (Beit
ul Mai), and all the provisions of the law in force
concerning other cultivated land are applicable to
lands of this category also.
But if a person does not open up the place which
has been taken and transferred to him with the per-
mission of the official in order to be opened up as
NOTE.* The provisions of the religious Jaw in force regard rm-j
the mode of re-vivifi cation of Arazi Mevat are given in Book 10 (f
the Mejele " Societies*
Land Lais. 55
aforesaid, and leaves it for three years in its past state
'without valid excuse, it shall be given to another. If
anyone has opened up and created into arable land
any of this category of land without permission, the
Tapu value of the place opened up by him shall be
taken from him, and a Tapu Sened (161) shall be
given on its being transferred to him.
104 Everyone may cut wood and planks from the Right <>t
mountains and " balkans " called Jibal Mubah, which cut wood
are not woods and forests assigned to the inhabitants nmoun -
tains and
ab antique, and they cannot interfere with each other ; hills not
and tithe is not taken on the herbage and cut trees
coming from these. And a portion of this species of
Jibal Mubah cannot be separated and granted by the
official into the possession of anybody, to be held by
him solely or in partnership (162) by Tapu in order
to be created into a wood.
NOTE. The authority of this article has been modified by the
Forest Law dated 11. Sheval, 1286.
105. If there be a grass land (otlak) within the Ricrht i \
boundaries of a village besides the pasture land {JL ua- tf
assigned to the inhabitants of towns and villages, the assign 1 ^ ld
inhabitants of that village can graze their animals and
benefit by the grass and water without paying any tax.
A grass land tax (resm otlak) of a suitable amount
will be taken for the Treasury from persons bringing
animals from outside, and wishing to profit by the
50 The Ottoman Land Code.
grass and water of that grass land, and the inhabitants t
of the village have not the power to prevent them, nor
do they take any share in the tax paid (163).
NOTE. In accordance witli Art. 43 of the Forest Law, a fine of
1 piastre per head will ~be taken from the shepherd who drives
animals without the permission of the official to Meras on restricted
parts of Government Forests. The procedure to l)e followed in the
event of the animals driven to these Forests not belonging to the
inhabitants of a village is given in Art. 45 of the said law.
( 57 )
BOOK III.
MUTEFERIAT.
106. Trees growing naturally on Arazi Mevat, Ownership
Metruke, Mine, Mevkuie, and Mernluke cannot be held
by Tapu. But trees growing naturally on Arazi Mirie
or Mevkufe are held in subjection to the land, as
stated in the chapter on possession (16-i) (Tesarruf).
XOTE. In accordance u-ifh the Forest Law, dated 11. Shew?,
1286, Destur, Vol. II., p. 404, all the Forests are divided iniofuur
classes :
1. Government Forests.
2. Forests attached to Vakfs.
3. Baltalyks assigned to Towns and Villages.
4. Woods belonging to individuals.
TJie Government Forests are administered in accordance u'ith the
said lav:, the regulations concerning the administration of Erkaf
Forests are also g^ven in the Karar name, Destur, Vol. IV., p. 417,
and the regulations dated ->. Muharcm, 12'. ( 3, with regard to the
'nation of titie-deeds for forests claimed l)y individuals are
given in Destur, Vol. TIL, p. 300.
107. Gold, silver, copper, iron, diverse stones, gyp- Ownership
sum. sulphur, saltpetre, emery, coal, salt, and other an( j m i n !
mines appearing on Arazi Mirie, in the possession erals *
of whomsoever it may be, belong to the Beit ul
the possessors have no right to take possession of
58 The Ottoman Land Code.
Ownership any mine or to have any share in the minerals
of metals . . .
and miner- got out. Likewise all mines appearing on the
als - " Takhsisat " (165) category of Arazi Mevkufe belong
to the Beit ul Mai : they cannot be interfered with
by the owner of the land or on behalf of the vakf.
But it is necessary that the owner should be given the
value of the amount of land which it is necessary to
leave idle by working the said mines, whether they be
on Arazi Miri or on the aforementioned Arazi
Mevkufe. One-fifth of the mines found on Arazi
Metruke and Arazi Mevat belong to the Beit ul Mai,
and the remainder belongs to the person who finds
them. But mines appearing on real vakf land
belong to the vakf, and mines appearing on Mulk p
Arsas within villages and towns belong entirely to the
owner. One-fifth of the minerals which are capable of
melting found on Arazi Ushri^ and Kharajie belong to
the Beit ul Mai, and the remainder to the owner of the
land and minerals which are not capable of melting
belong entirely to the owner ( a ) (166). The procedure
Treasure with regard to ancient and new coins and diverse
treasures of which the owner has no knowledge found
on all land is explained in the books on religious law ,
(kutb fikhie) ( b ) (167).
NoTE.( a ) Though it is fixed by the Law on Mines, 2. Shaban,
1285, Destur, Vol. II., p. 318, the said law h"S been abrogated by
1he subsequent Law on Mines, dated 18. Zilhije, 1304, which has
been substituted in its place, and which is published in No. 411 of
the Courts Journal.
( b ) Matters relating to excavations and search for coins, &c., of
Land Lau. 59
this . 1291,
'/, IV. 7/7., y>. -ilM, /''/' nnUi<'i'ity oj
ed l>y the l.n<r on Antiquities, dak
1*01, p. - . IV. 71".
108. The land of a person murdered cannot pass by Forfeiture
inheritance to his murderer. The murderer cannot derer^
likewise have the right to Tapu (168) in the land of
the murdered.
NOTE. See :Vo. 28.
109. The land of a Mussulman cannot pass by No inheri-
inheritance to his children, father or mother non-Mus- between
sulrnan ; the land of a non-Mussulman cannot pass by ^d
inheritance to his children, father or mother Mussul-
iiian.
man ; a non-Mussulman cannot have the right to Tapu
in the land of a Mussulman, and a Mussulman cannot
have the right to own in the land of a non-Mussulman
(169).
110. The land of an Ottoman subject does not pass Disability
by inheritance to his children, father or mother who subj'
are foreign subjects, and a foreign subject cannot have to land
the right to Tapu in the land of an Ottoman subject
(170).
111. The land of a person who has abandoned the Disabiiity
Ottoman nationality does not pass by inheritance abandon "
to his children, father or mother who are Ottoman or the Otto "
man na-
tional it v.
60 The Ottoman Land Code.
foreign subjects. It becomes vacant by the act, and
without seeking the possessors of the right to Tapu
it is put up to auction and given to the candidate
(171).
. The authority of this article has lieen modified ly the
law ddited end of Jemaziul evel, 1284, concerning foreign subjects
becoming possessors of property.
Legal 112. The master of any slave who shall have ac-
of quired land with the permission of his master, and
through the official, before or after being liberated,
cannot take such land from him and he cannot interfere
with it in any way, and if his master die before the
slave's liberation .the master's heirs likewise cannot
interfere with such land. If a clave die before being
liberated nobody shall inherit such land, and if there
are no freehold (Mulk) buildings or trees on such
land nobody but his partner, relation, or an inhabi-
tant of the village haying need of it shall have the
right to Tapu ; if there are on it freehold (Mulk)
buildings and trees his master shall have preference
over others, and during ten years he shall have
power to take it "for its Tapu value. If a slave die
after having been liberated his land passes by in-
heritance to his children, father or mother, who are
free. If there are none of these, if there are on it
no freehold (Mulk) buildings or trees, neither the
person who gave him freedom nor his children shall
have the right to Tapu, but it shall be given for t
Land Law. 61
its Tapu value to the possessors of the right to Tapu
being his own relations and who are free, if any : if
lionr, by auction to the candidate. If there be on it
free-hold (Mulk) buildings and trees, it, shall be given
for its Tapu value to the possessor of the right to
Tapu, being one of the heirs who has inherited such
freehold (Mulk) buildings and trees (172). (See note
to Art. 54.)
113. The alienation of Arazi Mirie and Mevkufe by Alienation
force and constraint by a person capable of being Force,"
intimidated is not valid. If a person has alienated to &* y^.
another the land acquired by him by force and con- able -
straint, or if he has fled and it has passed by inherit-
ance to his children, father, or mother, or if there are
none of these and by his death it has become vacant
(Mahlul), the alienor (by force and constraint), and
after his death his children, father, or mother have
power to take action on account of force. If he die
without an heir having the right of inheritance (Hak
Intikal) the land is not considered vacant (Mahlul),
and it remains in the hands of the person w r ho holds it
(173). (See note to Art. 54.)
114. The alienation and transfer of Arazi Mirie cr Alienation
Mevkufe with conditions considered illegal by the Sheri Condition? 1
(religious law), such as seeing, taking care, and causing voidable -
a person to live comfortably until hig death, is not
valid ; if a person has alienated to anc .iier the land
62 The Ottoman Land Code, <
acquired on these illegal conditions, or if tie has died
and it has passed by inheritance to his children, father,
or mother, the first alienor, or if he is dead, his heirs
having the right of inheritance have power to bring an
action on account of illegal conditions (174).
This Article has been replaced by one dated 18. Safer, 1306.
Land can- 115. The creditor cannot seize the land owned by a
seized 6 for debtor in exchange for his debt, and he has not the
power to force him to alienate it to another and to pay
the debt out of its value ; and on the death of the
debtor, whether he has other property and goods or
not, the land possessed by him passes by inheritance
to his heirs, if any, having the right of inheritance : if
none it becomes the right of Tapu and is granted for
its Tapu value to the possessor of the right to Tapu,
if any : if none by auction to the candidate (175).
NOTE. The provisions of this article contrary to the law dated
27. Simian, 1286, concerning the sale of immovable property, are
abolished.
AraziMh-ie 116. Arazi Mine and Mevkufe cannot be mortgaged
kuf/not~to (R enn )- But if a * P erson alienates the land owned by
be mort- n i m? i n opposition to this debt, to his creditor, through
the official, on condition that whenever he pays his
debt it shall be returned to him, or by Feragh bil vefa,
Conditional meaning that whenever he pays his debt he shall
have the right tc claim restitution, whether the time
has been fixed or not: without paying his debt, he
Land Law. 63
cannot claim the restitution of such land, and when
he has entirely paid his debt he can take back his
If&cl (176).
B. 7'Jie i '''I/'"!/ ut 3Iortr/rif/e (Feragh Inl vffa)
this llGtfi Article is given in Art. 26 of the Ta^u I
117. If a person who has alienated the land owned i/ ;
by him to another in opposition to his debt, with the p ' u
foregoing condition or by way of Feragh bil vefa, and
up to such a time cannot pay the debt, if he makes
his creditor his Yekil by Yekialet Devrie (177), that is
to say, at whatever time he dismisses him from being
Vekil he is to be his Yekil again to alienate or cause
to be alienated such land to another for its equiva-
lent value (Bedel Misl), and after deducting his debt
from the value to deliver the balance to the debtor,
and if by the expiration > of the time fixed the debtor
has not been able to pay the debt, the creditor can
during the debtor's lifetime alienate or cause such
land to be alienated through the official for its
equivalent value (Bedel Misl) and pay his debt ; and
if, as aforesaid, he makes some one else from out-
, side as his Yekil, such person also, at the expiration of
the time fixed, as Yekil as aforementioned, shall sell
such land to another and pay the debt of the debtor
from its value (178).
118. If a debtor who has alienated M* land to his
^ creditor, on the condition previously stated or under
64 The Ottoman Land Code.
Land the form of vefa, die before entirely paying his debt,
wrth g debt leaving children, father, or mother, the creditor, or if
V.o-pfl,, f)f -,
land, and the children, father and mother of the debtor
without entirely paying the debt cannot take posses-
sion of the land which has passed to them by inheri-
tance. If the debtor die without heirs having the
right to inheritance his creditor, or after his death his
heirs, have no right of attachment, and the land
follows the procedure of other vacant land (179)
(Mahlulat).
NOTE. The provisions of this article opposed to the law dated
23 Ramazan, 1286, concerning the conditions fixing Arazi Mirie
and Mevkufe and Musakafat and Musteghillat Vakfie, satisfying *
debt after the death of the debtor, are abolished.
Action as 119. Actions for fraud between alienors and alienees
cannot be i n a ^ Arazi Mirie' and Mevkufe will be heard, but
continued a f ter t k e (j ecease o f t the alienor his children, father
by heirs.
or mother have no right to action, and the land
cannot be considered Mahlul (180).
NOTE. It is one of the provisions of the Vezirial letters, dated
25. Ramazan, 1292, and 20. Ramazan, 1296, that disputes of this
nature will be heard in the Nizam Courts.
Validity of 120. The s.ilienation of land Mirie and Mevkufe
made in a state of mortal illness is valid, and the
land t]lus aiit ated with the permission of the official
\
Land Lai^. 65
does not pass by inheritance to the heirs having the /
right of inheritance, nor, if th<
b* come the right of Tapu (181).
right of inheritance, nor, if there are none, does it "*
121. A person cannot make the land he possesses Tenant
Vakf to any object (182) without its being put into his make' Vakf
actual possession by an Imperial Mulkname from the
Sultan.
122. Land attached db antique to a monastery and
of which the attachment is registered in the Imperial land held
Defter Khane cannot be possessed by Tapu and it j e r g elisious
cannot be bought or sold ; but concerning land which
has ab antiquo been held by Tapu, and which has
subsequently by some means passed into the hands
of a monk, and which is being possessed without
Tapu as being attached to a monastery, the same
procedure as with regard to other Arazi Mirie is
followed, and as before it is caused to be held by
Tapu (183).
123. When land capable of cultivation comes to Reclaimed
light by the waters of an ab antiquo lake or river S <,M bv
receding, it is put up to auction and given to the auction -
candidate, and it follows the same procedure as other
Arazi Mirie (184).
124. In disputes about the right of drinking and Preserva-
irrigating water and water channels, consideration is ^eot
paid only to the ab antiquo rights (185). rights.
F
66 The Ottoman Land Code.
Protection 125. It is not lawful to allow animals to graze in
vineylfrfB fields called K ^ uk Terke > vineyards, and gardens. If
gardens, they have been allowed to graze ab antiquo the damage
cannot be eternal. The owners will be warned to keep
a firm control over their animals until the crop is
removed. If, after warning, the animals do damage
by being sent by their owners, the latter will be made
to pay compensation. After the crop has been
removed, the animals will be allowed to graze again
in such parts of such lands as they have been allowed
to graze in of ol.d.
NOTE. As the inhabitants have the right to pasture their animals
after the first crop has been removed from the land, a letter has
been sent from the Ministry of Justice, dated 12. Eebi ul Akhir,
1305, stating that in the event of an application to the Courts to
s'op them they should not be prevented from pasturing in accordance
with this article.
Restoration 126. If the distinguishing and fixed ancient
boundaries, boundaries of a town or village have been spoilt or
are not recognisable they shall be gone over with
persons aged and trustworthy from among the inhabi-
tants of the neighbouring towns and villages, and the
ancient boundaries shall be defined through the Sheri
and the necessary marks renewed (188).
NOTE. In accordance with the Imperial Irade notified by
Vezirial letter, dated 20. Eamazan, 1296, boundary disputes will be
heard in the Nizam Courts.
Tithes, 127. The tithe of all crops shall only be considered
axes, &c. ag ^ ue k ^ e yjiiae within the boundaries of which
\
Land Law. 67
tho land on which they are grown is situate, no matter
where they may be threshed (189). Likewise the fixed
i^nts and taxes of yaylaks, kishlaks, otlaks (190),
enclosures, mills, &c., shall only be considered as due
by the village within whose boundaries they are situate.
NOTE. The provisions of this 127th Article have been confirmed
by Art. 4 of the Tithes Law, dated 16. Shaban, 1304, contained in
Nos. 396-398 of the Courts Journal, the tithe to be taken in kind
nr nmucy n all crops on the land, the mode of farming the tithes,
and the duties of officials appointed have also been fixed.
128. If in places registered in the Imperial Defter Works for
Khane as rice fields the stream supplying these rice to^pre-
fields with water gets destroyed, the persons sowing serred -
| the fields shall be made to repair the stream. The
land of rice fields is held by Tapu like other Arazi
Mirie. But whatever the local procedure in force db
aniiquo with regard to rice fields may be, it shall be
respected.
129. Land which was before the Tanzimat assigned Extension
to Sipahis and others called khassa (191), and that
reserved to the abolished system of Vinghana (193),
, called Bashtina (192), and that given by Tapu by the
abolished Koru Agas, shall be possessed by Tapu, and
in case of alienation, inheritance and transfer, it shall
follow exactly the same procedure as other Arazi Mirie.
NOTE. The mode of examining the Title-Deeds held by owners
claiming the possession of Woods, is given in the Eegulations Destar,
* Vol. 111., p. 300.
F 2
68 The Ottoman Land Code. ff
uhiftiik, 130. The land of an inhabited village cannot be
Seated! * given to one person independently in order to make a
Chiftlik (194) ; but, as stated in Art. 72 (195), if all tlie
inhabitants of a village are scattered, and the Tapu
has acquired the right to its lands, if it is not possible
to bring back that village to its original state by bring-
ing fresh agriculturists to live there, and conferring on
them the land separately, the land can be given in lots
to one, two or three persons in order to make that
village into a Chiftlik.
Definition 131. By law Chiftlik means a place which is culti-
of chifthk. va ec [ by m eans of a pair of bullocks and gives pro-
duce every year, and consists of about 70 to 80
donums of superior, 100 donums of middling, and 130
donums (196) of inferior land. A donum is a place of
40 square paces of medium length, that is 1600 ziras
square, and lands of less than one donum are called
kita (piece). But arqong the people the place called
Chiftlik consists of the land and buildings, animals,
seed, farm implements and other appurtenances, built
and got together in the cultivation of a lot of land.
If a possessor of a Chiftlik of this category dies
Devolution without any heir or persons possessing the right to
" Tapu, it is put up to auction by the Government,
and given to the candidate. If he dies without an
heir having the right of inheritance (Hak Intikal),
and the said buildings, animals, seed, &c., pass by
inheritance to the other heirs, as is stated in the
\
Land Law. 69
on Mahlulat (107), these heirs shall have the
right of Tapu to the lands possessed and cultivated
in subjection to that Chiftlik, and the said land shall
be conferred on them for its Tapu value. If they
abstain, without touching the property (Emlak) and
goods inherited by them, only the said land shall be
conferred by auction on the candidate (198).
XUTE. In accordance with Art. 3 of the Law dated 7. Muharem,
12! '3, Mussulman and non-Mussulman subjects who are cultivators
in Chiftlik*, have preferential rights at the time when lands sold hy
auction or alienated by private individuals are ~bein<j received.
132. Whoever by permission of the Sultan converts Land re-
i into property (Emlak) a portion of the sea, he becomes
owner of that place. If he gets permission and does sea -
not fulfil it in three years he has no further right,
and by permission of the Sultan another can make
that place into his property. If a person without
permission fills in a portion of the sea, such place
belongs to the Beit ul Mai and shall be sold to such
person for its equivalent value (Bedel Misl) ; if he
abstains, it shall be sold by auction to the candidate
, (199).
CONCLUSION. This Imperial law shall be in force
from the date of its promulgation, and the provisions
contrary to its contents of supreme orders issued
anciently or recently up to now concerning Arazi
Mirie and the Takhsisat category of Arazi Mevkufe
jo The Ottoman Land Code. <<
Operation (200) shall be annulled, and the Fetvas which have
been given by the Shiekhs-ul-Islam (201) based on the
said orders shall not be acted upon, and hereafter only
this Imperial Law shall be in force in the Sheikh-ul-
Islamate, Government Offices, and in all the Courts
and Councils. And the old laws concerning Arazi Mirie
and Mevkufe in the office of the Divan Hurnayun
(202), in the Imperial Defter Khane, and in other
places (203), shall not be respected.
7. Eamazan, 1274.
APPENDIX APPROVED BY IMPERIAL IRADE.
Actions by others claiming the possession of Arazi Khalie
Mahlule which the Government has conferred on immigrants, and
which has been cultivated or on which buildings have been made by
the latter, will not be heard after two years have passed without
excuse.
1 4. Jemazi ul evel, 1305.
12. January, 1303.
Courts Journal, No. 429.
\
II. TAPU LAW (1) (2).
COPY OF IMPERIAL KHAT.
"LET BE DONE ACCORDINGLY."
1. The Mai Memours, that is to say, the Defterdars, Authority
Malmudirs, and Kaza Mudirs, being authorised to M em ours.
confer Arazi Mine in the provinces, they are in the
position of the owner of the land (3).
NOTE. See Note ( b ), Art, 3 Land Law.
2. The Mudirs of Agriculture have no special con- Limit on
cern in matters of alienation, inheritance, and transfer M^^
of the said land, and they will only have the same
authority as other members in their quality of members
of the Council (4).
3. When a person desires to alienate his land to Formal it it
another, he must get a certificate bearing the seals tion.
of the Imam and Mukhtar of his quarter or village,
stating that he is really the owner of such land, the
true amount of how many piastres he is going to alie-
nate it for, the Kaza and village in which it is situate,
The Ottoman Land Code.
its boundaries, and the number of donums. When the
alienor and alienee, or their legal agents, come to the
Mejlis of the Country, the certificate brought by them
will be taken and kept, and after the fees of the
Mode of alienation have been paid, their statements will be
anrl ey " taken in the presence of the Mudir of the Country if
it is at the head-quarters of a Kaza, and the Mai
Meniours if it is at the head-quarters of a Liva or
Vilayet ; and the process of its registration will be
carried out, and the title-deed in hand will be taken,
if at the head- quarters of a Kaza. and sent with a
Mazbata and the said fees to the head-quarters of the
Liva, to which it is attached, in order to have an
annotation written in the margin, or, if it is an old
one, for it to be changed and the old one kept. There
Registra- the Mazbata of the Kaza will be kept and the registra-
tion carried out, and in accordance therewith another
Mazbata will be prepared and sent to the Defter
Khane. If it is at the head-quarters of the Liva, the
Mazbata will be at once prepared and sent to the
Defter Khane. If the alienor has no old title-deed,
the nature of his possession should be stated in the
Mazbatas prepared' as above.
NOTE. The authority of the sentences in this and the following
article, which are contrary to Arts. 2 & 3 of the instructions dated
7. SJiaban, 1276, concerning Tapu Seneds, ore abolished.
4. When a person is about to alienate his land in
the country to a person living at Constantinople, a
\
Tapu Law. 73
Ma/buta stating that he is actually the owner must M< -:
be brought from the Mejlis of the Sanj;ik in which w henY>ur-
upon suc-
cession.
th? land is situate, and the alienor and alienee or their
1 1 agents will attend at the Defter Khane (5), and tinopie.
after their statements have been taken as stated in the
preceding article, if the alienor has a new Tapu Sened
a marginal note will be written, if not, a new one will
be given. On the delivery of every title-deed a
certificate will be sent from the Defter Khane to the
locality in order that the registration may be made
there. (See note to Art. 3.)
5. In the event of inheritance, the fees that will be Formalities
taken from the person having the right of inheritance
in accordance with the sealed certificate given by the
Imam and Mukhtar of his village or quarter stating
that the land of the deceased which is about to be
inherited was really his property, its estimated value,
and that in accordance with Arts. -54 & 55 of the Land
Law (6) ( a ), the right of inheritance only belongs to
the person to whom it is about to be carried out,
together with the Mazbata, will be sent to the Defter
Khane, as stated in Art. 3, and the inheritance will be
carried out ( b ).
X<>TE.(*) The sentence, "In accordance v:ith Arts. 54 & 55 of
the Land i'/ f ," in this article has been changed by the laiv dated
17. M '(harem, 1^84, concerning the mode of inheritance of Aiazi
Mirie.
( b ) In accordance with the Instructions (Xo. 4), the system of
74 The ^Ottoman Land Code.
inheritance is carried out locally, and printed Kochans are yiven to
. the owners.
^
Duty pay- 6. At however many piastres the land may be
sakcr 11 alienated, "a fee of five piastres per hundred is taken
mortgage. f rom ^he alienee. But if a person understates the
price of the land in order to pay less fees on alienation,
the value shall be ascertained by a person free from
bias and corruption, and the said fee shall be taken on
its estimated value. Half fees shall be taken from the
person who mortgages (Vefaen Feragh) (7) his land
for debt, that is to say a fee of two and a half piastres
per hundred on the amount of the debt.
NOTE. See No. 29.
Duty pay- 7. In an exchange of land (8) the estimated total
exchange! value of both lands shall be, divided and a fee of five
piastres per hundred shall be taken, but the one- half
of this fee shall be paid by the one and the other half
by the other exchanger of the land.
Duty pay- 8. In inheritance the person who is about to inherit
succession, the land shall' likewise pay an inheritance fee of five,
piastres per hundred on the estimated value of the
land.
Fee pay- . Besides the alienation and inheritance fees that
tide-deed. sna U he taken in accordance with the above, when a
new title-deed is issued three piastres' cost of paper
\
Tapu Law. 75
shall also be taken in alienation from the alienor, and
in inheritance from the inheritor.
NOTE. In accordance with the new system, cost of paper is not
taken from the alienor.
10. When a person is about to alienate to another the Duty pay-
land of which the inheritance has not yet been legally Vendor has
carried out to him, five piastres per hundred shall be ln
taken from each of them, as inheritance fee from the
alienor and as alienation fee from the alienee, and in
case a new title-deed has been issued three piastres
cost of paper shall also be taken from the alienor (9).
11. On a certificate from the village or quarter, and New titie-
the necessary inquiries, that new title-deeds should be
issued, a Mazbata will be drawn up, and sent, together
with the certificate, to the" Defter Kh,ane, on payment
of the following fees :
i. Inheritance and cost of paper, by persons who
hold land, other than vacant or concealed (10),
without title.
ii. Cost of paper, by persons who have old titles
issued by Sipahis, Multezims, &c. (11), and by
persons who prove, by the registers, that they have
lost their title-deed (12).
NOTE. For the examination of Title-Deeds issued regarding
Woods see the Regulations, Destur, Vol. III., p. 300. The matter
* of renewal of Title-Deeds is fixed in Art. 1 of the Tapu Regulations
(No. 3).
76 The Ottoman Land Code.
t
Title-deeds 12. As stated in Art. 103 of the Land Law, waste
Und* 8 ' lands (Boz and Kiraj) shall be given and new titles
issued gratis and without fee to persons who newly
open them up and make them into arable land ; only
three piastres' cost of paper shall be taken. Tithes
Immunity shall not be taken for one year on this category of
lands from land (Boz and Kiraj), and for two years if the land
tlthe ' opened by them is stony (Tashlik) (13).
Waste- 13. Arazi Mevat is given in the foregoing manner
to'beap- to persons who desire it for agriculture and improve*
propriated ment on u r> j t j s fa & duty o f y a ji s Kaimakams,
except J J
under Kaza Mudirs, and Mai Memours, not to allow persons
special . . .
conditions, to take it with other supposition, and especially not
to allow title-deeds to be given and possession granted
to persons for places which have been left and as-
signed to the public benefit, and Jibal Mubah (moun-
tains) (14), and to cause the land which becomes the
right of Tapu by non-cultivation, to be cultivated.
NOTE. See Note ( b ), Art. 3, Land Law.
Contents 14. In the printed Tapu Seneds with the Tughra at
Tapu in top given to the owners of land stating the nature of *
Seneds. their holding, the Kaza and village in which the
land is situate, and its boundaries and number of
donums shall be stated, and it shall be sealed with the
special seal of the office entrusted with the register.
f
15. The conditions contained in the Mulknames
Tapu Law. 77
will bo carried out conn-ruing Chiftliks which arc (< <".<iitions
being held by Imperial Mulkname (!.">). i.ii.-.i to
, Chiftliks.
16. If the possessors of the right to Tapu are not Disposal of
forthcoming the land which is the right of Tapu shall f^nd, sub-
be offered in turn to the possessors of the right to v^J
Tapu, as stated in Art. 59 of the Land Law, for the
value assessed locally, that is to say, by ascertaining
from the inhabitants of the town or village in which
the land is situate, who are disinterested possessors of
knowledge, and if it does not cause loss and injury to
the Treasuiy. If they are candidates it shall be
conferred upon them without being put up to auction,
and the necessary Mazbata drawn up. If the land in
question is less than one hundred donums, the inquiries
of the Kaza Mejlis (16) shall be sufficient, but if it is
more than one hundred dpnums, the inquiries of the
Kaza Mejlis shall not be sufficient, and after the
necessary inquiries have also been carried out by the
Liva Mejlis (17) the transfer shall be carried out also
without auction. Care must be taken that the Tapu
of this land is not delayed, and that the rights of the
, possessors of the right to Tapu are not lost on account
of these inquiries (18).
NOTE. The authority of this article, contrary to the law dated
17. Muha>em, 1284, concerning the mode of inheritance of Arazi
j\lirie is abolished.
17. If the possessors of the right to Tapu lose their
78 The Ottoman Land Code. fi
Declaration right by refusing to take for its Tapu value the land
ment to which they have a right to Tapu, the circumstance
of their refusal will be stated in the Mazbata that will
be drawn up in order that the land may be given to
the candidate at auction as follows. (See note to
Art. 16.)
Disposal 18. Land which has become pure Mahlul (19), and
Ma*hiu] 1 which in accordance with Art. 77 of the Land Law, it
it is necessary should be conferred by auction on
another on account of there being no possessors of the
right to Tapu, or if there are any, and they abstain
from taking the land to which they have the right to
Tapu and lose their right, will be conferred on the ^
candidate for the price settled by auction by the Kaza
Mejlis, if up to one hundred donums, and its auction
again by the Liva Mejlis, if from one hundred to five
hundred donums, and the necessary Mazbata will be
prepared. If it is more than five hundred donums
after the auctions at the Kaza and Liva Mejlises have
been carried out, the matter should be communicated
to the Ministry of Finance, in order that another
auction should ' be held at the Imperial Treasury of t
Finance also. The auctions of this category of
Mahlulat shall be completed at most within three
months from the date of the arrival of the Mazbatas
at Constantinople. The possessors of the right to
Tapu have been stated at length in the Land Law,
but the Tapu rights of inhabitants who have need of '
Tapn Law. 79
land, and who are comprised in the last degree of
riirhts to Tapu being confined to the amount of
separated land to which they have neqd, in matters
of large parcels of land which it would be injurious to
separate and divide, and Chiftlik lands, the right to
Tapu is valid only up to the eighth degree stated in
Art. 59 of the said Law. (See note to Art. 16.)
NOTE. Superseded ly fresh article, approved ly Imperial Trade,
dated 27. Sheval, 1303.
19. The Muajelat of Arazi Mahlul, and the aliena- Application
tion and inheritance fees to be taken as described i a Vand^of
before, and the cost of paper, shall all belong to the fees -
Imperial Treasury.
20. Whoever other than the land officials gives Reward to
notice of concealed Arazj. Mirie and Mevkufe, the as to con .
Mahlulsi which has not been directly heard of
by the Government, will be given a reward of ten
piastres per hundred on the Bedel Muajel after it has
been sold by auction by the Mejlis.
NOTE. See No. 30.
21. On the alienation, inheritance, and conference of Title-deeds
land as above, after the fees of alienation or inheritance, **
or the Muajel have been paid no time should be lost
in getting or delivering the title-deeds. In order that
the new owner may at once possess and cultivate the
land, a certificate sealed with the seal of the Mejlis
8o
The Ottoman Land Code.
Certificate shall be given to him to be considered as valid until
making of the arrival of the title-deed.
title-deed.
NOTE. In Accordance with the instructions dated 7. Shaban t
1276, concerning Tapu Seneds, the authority of the sentence, "a
certificate sealed with the seal of the Mejlis shall be given" is no
longer in force.
Registra-
tion.
22. A separate land register for each Kaza shall
be kept at the head-quarters of the Liva, and in the
event of alienation, inheritance, or conference, the
process of registration shall be carried out.
Transmis- 23. The Mazbatas drawn up for the title-deeds of
Mazbatas. ^ anc ^ w ^ ^ e P llt * n a se P arate envelope and sent by ^
the post direct to the Defter Khane. But it shall
also be permissible for the person to whom the land is
going to be passed to take, the Mazbata himself and
present it to the Defter Khane.
Hearing of 24. Actions for fraud in Arazi Mirie being current,
SuT f r actions of this kind which are tried by the Sheri shall
be heard in the presence of the Mai Memours or
their agents who are considered as the owners of the ,
soil.
NOTE. I n accordance with Imperial Jiade communicated by
letter from the Ministry of Justice, dated 20. tiamazan, 12U(j,
actions with rejard to land and boundaries will be heard in the
Kizam Courts. And in accordance with Vezirial letter, dated 20.
Zilriii'e, 1290, the D<ft>r Khane and Tapu officials will be present ,,
during trial as owners of the soil.
CHAPTER L
CONCERNING THE MORTGAGE (VEFAEN FERAGH) BY
THE OWNER OF ARAZI MIRIE IN OPPOSITION TO DEBT.
25. As stated in the Imperial Land Law, the Legal
mortgage (Vefaen Feragh) of Arazi Mine by the owner Mortgagee
in order to secure debt is lawful and current, but if
the mortgagor dies without heirs having the right to
inheritance, the creditor cannot seize such land in
opposition to his claim, and though by law it is neces-
sary that such land should become the right of Tapu
as, solely fb: che public benefit, Imperial permission
was given or the 9. Ramazan, 1274, that the creditor
may recover his debt from the value of such land, the
conditions which it is necessary should be followed
for the mortgage (Vefaen Feragh) of land are stated
below.
NOTE. The authority of this article, contrary to the law dated
23. Ramazan, 1286, concerning conditions appointing Arazi Mirie
and Mevkufe and Musakafat and Musteghillat Vakfie to satisfy
debt after the death of the debtor, is abolished.
26. If an owner of Arazi Mirie wishes to borrow Formality
of mo
gage.
fmoney by mortgaging (Vefaen Feragh) the land in
82 The Ottoman Land Code.
,
his possession by Tapu in order to secure the creditor,
both parties, i.e. creditor and debtor, or their repre-
sentatives shall come to the Kaza Mejlis if in a Kaza,
or to the Liva or Ayalet Mejlis if in a Liva or Ayalet,
and on stating and explaining in the presence of the
Mai Memours the amount and boundaries of the land,
the amount of the capital and interest (which should
not go beyond the limit authorised by Government),
and that it has been mortgaged (Feragh bil Vefa) ; it
will be bound in an official deed, and the Tapu Sened
in hand will be delivered on trust to the mortgagee,
Mortgage and the resume will be entered in the special register
tered. regIS kept for this purpose, and when the said debtor wishes
to relieve his land by settling the debt, in the same
way both parties shall come to the Mejlis of the Country
and the Deed and Tapu Sened will be restituted, and
the entry in the register shall be amended.
.Mortgagee 27. When a mortgage (Yefaen Feragh) as above
not to
takes place, neither the mortgagor nor the mortgagee
can alienate that land to another ; but if, as stated in
Art. 117 of the Land Law, a period has been fixed,
and if during the fixed period the mortgagor is unable
to pay the debt, in order to pay the debt from the
value of the land by its sale, the mortgagee, or if a
person from, outside has been made Yekil by Yekialet
i>o\ver of Devrie, then at the expiration of the fixed time, the
person who is Yekil, may through the official recover
the debt from the value of the land by selling it by
> Tapu Law. 83
public auction for from fifteen days to two months at
most, according to its value and size. In such case
the circumstance of this Vekialet Devrie should be
I in the Official Deed mentioned in the pre-
ceding article. If it has not been stated, a Vekialet
Devrie action will not be considered (29).
28. When a person dies after having mortgaged Procedure
(Vefaen Feragh) through the official, in accordance JJ^ 1 ^
with the above, the land which he possesses by Tapu dled -
to his creditor in opposition to his debt, and before
paying the debt, the said debt shall be recovered like
other debts from his estate, and if he has no estate, or
if his estate is not sufficient for his debts, the children,
father or mother of the deceased shall not be able to
hold such land without entirely paying the said debt,
and the creditor has the Tight to prevent them from
holding such land until the complete recovery of the
said debt. And if the deceased has no heir having the
right of inheritance but has a possessor of the right to
Tapu, in this case the known Tapu value shall not be
sought for, but if the possessor of the Bright to Tapu is
willing to have it conferred on him for whatever price
it fetches at auction, it shall be given to him for that
price, and an amount equal to one year's crop of the
said land shall be kept for the Beit ul Mai from the
money received in opposition to the Tapu value,
and with the remainder the said debt which has not
been paid by the estate of the deceased shall be paid.
G 2
84 The Ottoman Land Code.
procedure And if the possessor of the right to Tapu refuses to
of Z>rt e - ath take tlie land for sucl1 P rice > or if tbe deceased has no
gagor. possessor of the right to Tapu, the land shall be given
to the candidate for the price settled at auction, in
which case an amount equal to one year's crop
shall also be kept from the said price for the Beit
ul Mai, and the said debt shall be paid with the
surplus (30).
NOTE. The provisions of this article contrary to the law dated
23. Ramazan, 1286, concerning conditions appointing Arazi Mirie
and Mevkvfe, and Musakafat and Musteghillat Vakfie to satisfy
debt after the death of the debtor, are abolished.
Mortgagee 29. In all of the above cases, if the price of the land
comTupon does n t cover the debt, as the creditor has no power
other lands t c l a i m the balance of his debt from anywhere else or
of the ( J
mortgagor to recover it from the value 'of the debtor's other lands
which are not registered in the said Deed and register,
after one year's produce has been deducted from the
equivalent value (Bedel Misl) of the land which will
be mortgaged (Vefaen Feragh) in opposition to the
debt, the remainder must be considered as equal to
the said debt, and the alienation of land in opposition
to more debt (31) shall not be carried out.
Mortgage 30. If the creditor and debtor do not respect the
e y rules stated above, and make a Deed between them-
selves alone, it will not be respected at any time.
s, Tapii Law. 85
Actions on account of mortgage (Feragh bil Vela) Action*
will }c heard by the local 3Lejlis (32) in accordance
wifh the entry in the register and the official
Deed mentioned above, in the presence of the 31 al
3Leinour (33).
NOTE. See Note to Art. 24.
86 The Ottoman Land Code.
CHAPTER II.
CONCERNING THE CHIFTLIKS OF ORPHANS.
Chiftiiks 31. Chiftliks of the category known as such among
s ' the people, that is buildings, animals, oxen (Chift),
vineyards, and other properties, and the whole arrange-
ment including the Arazi Mirie cultivated in subjection
to these, belonging by inheritance to orphans, that
can be let for a rent equal to the interest calculated
at 100 paras per purse on the estimated value of the
Chiftlik, on the Timur Bash system, that is to say, on
condition that the existing properties and animals
that are destroyed are to be replaced, will continue as
before to belong to the orphans until they reach their
majority.
Manage- 32. If most of the property in the Chiftliks of this
orphans' category is of a "movable nature and the rest of the
property. p r0 p er ty consists of a few houses and straw barns, and
the loss that will be caused by the destruction of these
is very small in comparison with the size of the land,
the movable property should at once be sold and
the land which will be left as belonging to the orphans
leased for whatever rent can be found.
Tapu Law. 87
33. If the immovable property of the Chiftliks is ?:
valuable, such as large buildings, mills, gardens, and ^ph^'
vineyards, and it is proved according to the Sheri by i >r "P rrt y-
the evidence of possessors of knowledge that by their
destruction total loss will be caused to the orphans,
then the whole lot can be sold by auction, and, in
accordance with the Mazbata and Hujjet which will
be sent to the Imperial Defter Khane, permission will
also be given for the alienation of the land subject to
the sold property. Land which is being used in con-
nection with a house, and the value of which it is
proved in accordance with the Sheri as above will be
greatly diminished, in case of separation is also of
this category, and, as aforesaid, the house and land
can be sold together.
8. Jemazi 'lakhir, 1275.
88 The Ottoman Land Code.
III. REGULATIONS REGARDING TAPU
SENEDS.
PEEFACE.
The legal requirements of Arazi Mirie are contained
in the Imperial Land Law (1) printed and published
in the year 1274, and in the Tapu Law printed and
published in the year 1275 (2) ; but in place of the
certificates stated in Art. 21 of the latter law, sealed
with the seal of the Mejlis, which the law requires
should be given to owners to be held as valid until
the arrival of the Title-Deeds from the Imperial Defter
Khane, in accordance with the concise system now
established in order to simplify and secure matters,
printed tabulated forms of certificate cut out of the
printed Kochan 'Books, sent everywhere and filled up
as shown in the Instructions (No. 4), should henceforth
be given, and though a long law extending the articles
of the said law will hereafter be published as it is
necessary to alter and explain some of the provisions
of the said law (3), for the present these instructions
containing the necessary articles have been prepared.
Regarding Tapu Seneds. 89
1. Henceforth nobody shall be allowed under any All titles
circumstances to hold Arazi Mirie without title-deed. Mir i t ; to be
It Shall be obligatory for persons having no title-deeds b y id d e e ^ ed
to take them out, and those having old titles other
than, the ones with the Tughra at top to change them.
The Valis Mutessarifs, Kaimakams, Members of Mejlis,
Mai Mernours, Mudirs of Kazas, and Tapu Clerks
having been appointed to carry out the necessary
inquiries with regard to this, in case of negligence
they will all be responsible. The person appointed to
fill the post of Tapu Clerk shall be selected from
among the Kaza, Mahkeme, and Nufus Clerks, who-
ever must be most trustworthy and efficient.
NOTE. It has been notified by Veziricd I'-tt'-r, dated 26. Zilhije,
1290, that the Defter Khane officials and Tapu clerks have subse-
quently been a/pointed everywhere. The Regulations regarding
the issue of Title-Deeds fur Arazi Mevkufe by the Defter Khane
also are stated in No. 32.
2. When a person is about to alienate his land to Provisions
another, the formalities stated in Art. 3 of the Tapu batas."
Law shall be carried out, but as a separate Mazbata
cannot be prepared for each case as required by the
new system, at the time of alienation, and in the other
ways stated in the printed instructions, printed Maz-
batas shall be filled up monthly at the Head-Quarters
of Kazas and Sanjaks, and sent, together with all
the certificates that have been collected during the
course of one month, from the Head-Quarters of the
Sanjak to the Defter Khane. Though it is allowed
90 The Ottoman Land Code.
in case of necessity to send the certificates collected
in less than a month, it is strictly forbidden to detain
them for more than a month.
3. In accordance with the new system, the custom
of writing in the margin of Tapu title-deeds shall be
Writin
deeds ^or^" abandoned, and in every case a new title-deed will be
bidden. issued for which three piastres' cost of paper and one
piastre clerk's fee, to belong to the local clerk, shall
be taken. Nothing else shall be taken.
Descent of 4. If it is proved that the land of a person who dies
without heirs having the right of inheritance, which
wfthout becomes the right of Tapu, has been taken and
heirs. concealed, as stated in Art. 77 of the Land Law it
shall be conferred on the person who has taken it if
he is a possessor of the right to Tapu for its Tapu
value at that time, that is to say, at the time when
its concealment is proved. If he abstains from taking
it for that price, or if he is not a possessor of the
right to Tapu, it shall be conferred by auction on the
candidate; but if the concealed land comes to light
after the possessor of the right to Tapu has not without
excuse : that is to say, one of the valid disabilities
such as minority, insanity, imbecility, or absence from
his country, come within six months of the date of
the arrival of the Kochan Books required by this new
system at their destination to the Mejlis of the Country,
and asked for a certificate in order to get a Tapu
\Regulations Regarding Tapu Seneds. 91
title-deed for it, the Tapu value shall not be sought
for, but it shall be put up to auction and offered to
hinl once for the price settled. If he accepts, it
will be given to him, if not, as it will be given
to any other candidate who appears, a certificate
should be taken from him stating that he has with-
drawn, and in order that everybody should know the
circumstance from the beginning, it is the duty of the
local officials to make it known to all in a beseeming
manner.
XOTE. Tlie mode of auctioning the land in accordance with its
size in the event of the owners of the right to Tapu withdrawing, is
given in an amended Art. 18, of the Tapu Law.
I
5. Lands Boz and Kiraj which are far away from Disposal of
habitations may be given gratis in order to be newly S^nds"
opened up into arable land on payment of only three
piastres' cost of paper, as stated in Art. 12 of the
Tapu Law, and one piastre clerk's fee in accordance
with the new system, but cultivable land which has
become waste (Khali) without owner is exempt from
this rule and shall be given by auction to the
, candidate. As the opening-up of 'Boz aiyl Kiraj
lands and making them into arable lands is depen-
dent on getting permission from the Government, as Permission
stated in Art. 103 of the Imperial Land Law, land
which has been opened up and made into cultivated ful bef(?re
occupation.
land without getting permission from Government
f after the publication of the said law shall be conferred
92 The Ottoman Land Code. /
on the owner on payment of the Tapu value at the
time of seizure and cultivation. But this decision also
is the same as that stated in the last article if witHout
excuse the owner does not come within six months
and pay the Tapu value as stated above and ask for
a title, in that case it shall be conferred on him on
payment of the present Tapu value.
Definition 6. The Tapu value which shall be taken for land
value?* that is going to be conferred on the possessor of the
right to Tapu does not mean the amount fetched at
auction or the amount stated by a person from outside,
but its actual value in accordance with the information
of disinterested possessors of knowledge, having regard
to the likes of such land. It is contrary to law to put
up to auction the Arazi Mahlul to which there is ' a
right to Tapu. The Tapu yalue which shall be taken
being the legal right of the Beit ul Mai, if the pos-
sessor of knowledge who gives information states more
or less on account of having taken money or any other
interested cause, he shall be punished in accordance
with the Imperial Penal Code (4). The Civil and
Financial Officials are also severally responsible in
this matter. Exactly the same attention will also be
given in matters of estimating the value of land for
the customary fees to be taken.
Duty pay- 7. A fee of five piastres per hundred shall be taken
fssueT/ 11 on the value of lands when a title-deed is issued, in
title-deed.
Dilations Regarding Tapu Seneds. 93
lance \sith the law tor the sites of Chit'tlik Imild-
L r anlens, vineyards, tfcc. But the rule in estimat-
ihe value of these is this : that it will be supposed Mode of
.... . . , , estimating
that there are no buildings, trees, or vines on the lands va lue.
on which they are, and the fee of five piastres per hun-
(^red shall be taken on the price that they would be
worth when raw land. No consideration will be paid
to their value in their present state. But a fee of five
piastres per hundred on the gross value of land and
trees shall be taken on naturally grown woods.
8. A fee of five piastres per hundred shall be taken Duty upon
from persons who have no title-deed but who prove got by
their prescriptive right (Hak Karar) in accordance with j^f ol
Art, 78 of the Land Law, that is to say, who have gained
the right by undisturbed possession for ten years relying
on one of the means of acquiring possession, such as
inheritance, alienation, or transfer from a person who is
authorised to confer land, and a new title-deed shall
be issued to them, but this also is conditional on its
being carried out within six months as stated above.
If there is anyone who without excuse does not take
out a title-deed within the said time, ^double fees shall
afterwards be taken from them.
9. In accordance with Art. 11 of the Tapu Law, Cost of
three piastres' cost of paper shall be taken from
persons who have old title-deeds issued by Sipahis,
Multezims, &c. (5), and fresh Tapu Title-Deeds will
94 The Ottoman Land Code.
be given, but it is necessary that the said old title-
deeds should be reliable and valid, that is to say
the seal of the title-deed should be known locally.
As papers without seals or sealed with an unknown
seal will not be looked upon as valid, persons holding
them are equivalent to possessors of land without a
title-deed, and they will be given a new title-deed on
payment of a fee of five piastres per hundred, cost
of paper, and clerk's fee, if the prescriptive right is
proved. If the prescriptive right is not proved,
then the procedure for concealed land stated in Art. 4
Old title- shall be carried out. Persons holding old title-deeds
given up. * which are valid as above stated, should change them
also as above stated within six months. The custom-
ary fee of five piastres per hundred shall be taken from
those who do not change them within the said period.
NOTE. The examination of Title-Deeds held by persons claiming
the possession of Woods, is given in the Regulations, Destur, Vol.
in., p. 3oo.
New title- 10. As stated in Art. 11 of the Tapu Law, new
title-deeds sna ll be issued to persons who prove
from the registers that they have lost their title-
deeds on payment of only three piastres' cost of
paper, but this only applies to title-deeds with the
Tughra at the top which have been issued by the
Imperial Defter Khane. Persons claiming to have
lost the title-deeds issued by Sipahis, Multezims,
Muhassils, &c., before 1263 shall pay the customary
A' -^illations Regarding Tapu Seneds. 95
8 of five piastres per hundred. Persons who can
prove from the registers that they have lost their
Tughra title-deeds as stated, should also within six
months take out new ones. Persons who without
'use have not taken out new titles within this period
shall in every case pay the customary fee of five
piastres per hundred. If there are any persons who
wish to change their old Tughra title-deeds for the
new title-deeds which are now being organised only
three piastres' cost of paper and one piastre clerk's fee
shall be taken and the tabulated forms will be sent to
the Defter Khane in accordance with the new system.
This course depends entirely on the desire being shown
> by the owners themselves.
11. When a person is going to alienate to another his Sale by
share of the land held in partnership it shall be offered hL share
to his partner, and if he abstains from taking it a deed m lands<
shall be taken from him and a note made of the cir-
cumstance in the alienation column (6) of the tabulated
form of certificate. When land held in partnership is
divided a note should also be made in the same place
in the same form, stating that it has been divided
in accordance with Art. 15 of the Land Law, which
states that it should be divided in a just manner (7),
and the title-deeds wdll be changed.
12. When one portion of the land held under one or
more title-deeds is separated and alienated to another, a
g6 The Ottoman Land Code.
Procedure certificate shall be given to the purchaser in accordance
ance* Se *~ w ^ the rules that shall be carried out in other aliena-
tions, and the other formalities shall be carried out.
If, on account of the separation of one portion, the
boundaries and number of donums stated in the title-
deeds possessed by the owner of the land are altered,
the title-deeds shall be changed.
Duty upon 13. When a person is going to alienate to another the
andalTena- ^^ ^ w ^i cn tne inheritance (8) to him has not yet
tion. been legally carried out in accordance with Art. 10
of the Tapu Law, a fee of five piastres per hundred
shall be taken from both, as fee of inheritance from
the alienor and as fee of sale from the alienee, but
supposing the said land has been inherited by the
father of such person from his father, it is not allowed
that two sets of inheritance fees shall be taken at once.
When the land the inheritance of which has not been
carried out as quoted above, is alienated to another
gratis, both the fees of inheritance which shall be taken
from the alienor and the fees of sale which shall be
taken from the alienee shall be taken on the estimated
value of that land.
Certificate 14. When a person is about to alienate to another
to aHen l Je en his land for which the title-deed has not yet arrived
sale 6 f from tlie Defter Khane, but for which a certificate cut
out of the counterfoil books in accordance with the
system now adopted has been issued to him after the
R^-iil tfions Regarding Tapu & 97
- of alienation have been taken, a Bepai
iiicatc shall be ^iveii to the alienee, and the c.-rtili-
iin the i i of the alienor shall be attached
to the duplicate of the new form of certificate issued
to the alienee, and sent to the Defter Khane in accor-
dance with the system. In the column "reason of
issue of title-deed " in this new tabulated form of
; iicate, shall be written "as the title-deed has
not yet come, the old certificate is sent herewith."
In case the title-deed has been drawn up and sent
to its destination in accordance with the old tabulated
form of certificate before the arrival at the Defter
Khane of this new tabulated form of certificate, it
shall there be kept, and when the title-deed drawn in Delivery of
accordance with the new tabulated form of certificate JJf 1 ^!^
arrives it shall be delivered to the alienee, and the chaser -
detained title-deed shall be attached to the certificate
taken from him and returned to the Imperial Defter
Khane. This procedure shall also be carried out
exactly with regard to persons who have temporary
certificates, and who die before the arrival of the title-
deed.
15. The alienation, inheritance, and other affairs of Aff>,h s r <>-
land contained in every village shall be carried out J!|^;
at the head-quarters of the Kaza to which it is subject, wh ^
i "i 11 i i be cavr ie'l
and it shall not be carried out at the head-quarters out.
uother Kaza or Sanjak (9). But, concerning land
t A'hich the inquiries or auction shall be carried
98 The Ottoman Land Code.
out at the head-quarters of the Sanjak, as stated
Arts. 16 and 18 of the Tapu Law, and likewise land of
which the repeated auction should be carried or.t at
Constantinople. After the procedure requisite in
accordance with the law has been carried out, the
certificate shall be drawn up locally as stated.
NOTE. An amended Art. 15, was published on the 7. Etbi ul.
cikliir, 1304.
Counter- 16- As stated in the Instructions (10), the counter-
foils of f o i} s o f certificates shall -remain as records at the
certificates:
where head-quarters of each Kaza, and summary registers
' for each Kaza shall be kept at the head- quarters of
Sanjaks. Both the counterfoils and the summ;i
registers shall be kept in safe places in order to
be referred to in case of necessity.
CONCLUSION. If any doubt arises in carrying out
difficulties.
Al ~~ new system, explanation should be asked from
the Defter Khane Khakani.
7. Shaban, 1276.
IT. INSTRUCTIONS.
PREFACE.
The provisions of the law with regard to Arazi
Mirie are stated in the Imperial Land Law (1), pub-
lished at the beginning of Zilhije, 127-i (2).
' The duties of officials and the other procedure
concerning this are also stated at length in the
Tapu Law ; of which copies have been printed and
sent everywhere (3), in Jemazil akhir, 1275.
The provisions of these two laws shall henceforward
also be in force.
In orde .: f put the preparation and issue of Tapu title-
deeds in good and regular order now by reason of the
new system which has been adopted, ,it is necessary
*that the provisions of the said laws should be simpli-
fied and perfected, and printed tabulated forms of
certificate have now been settled to take the place
of the temporary certificates sealed with the seal of the
lis which are issued to landowners, to be valid
until the arrival of the title-deeds from the Imperial
jDefter Khane, as stated in Art. 21.
H 2
ioo The Ottoman Land Code.
The temporary certificates which have been issued
until now and on which the duties and fees have been
paid need not be changed for these printed tabulated
forms of certificate ; they shall be left in the hands of
their owners until the arrival of the title-deeds from
the Defter Khane and be valid as before. These
Instructions have been drawn up to explain the pro-
cedure to be followed henceforth with regard to the
said printed tabulated forms of certificate, which are to
be sent to the Defter Khane on the arrival of the title-
deeds.
Register ! Different numbers for each Sanjak have been
and certifi- pl ace d i n the said registers. Each register con- ^
tains two hundred forms of certificate, and each
certificate is in triplicate. The certificates are bound
in each register in consecutive numbers, beginning
with one up to two hundred ; when required, they
will be used thus consecutively in the following
manner. In order to show properly how they are to
be used, printed forms of specimens have been filled up
in different ways with the number of the specimen at
the top, and six copies sent to each district. The,
Mazbatas to be sent from the Kazas to the head-
quarters of the Sanjak and from the head-quarters of
the Sanjak to the Defter Khane having also been
printed, copies have been filled up in order to serve
as specimens, and likewise numbered, and one copy
sent for each Kaza and head-quarters of Liva. As-'
Instructions Regarding Tapn Scncds. 101
man- iv-'istrrs for each Kaza will be
kept at the head-quarters of the Sanjak, two specimen
* s of these will also be sent to the headquarters
eh Sanjak.
2. Whenever an alienation (-i), inheritance (5), trans-
fer (0), issue of title-deed to a person without one (7), forms , ot
v ' certiti
or exchange of old title-deed (8) takes place, in fine when
as shown in the specimens, the three forms of certifi-
cate will be filled up as follows : the name of the
Sanjak opposite the word " Liva," the name of the
Kaza in which the land lies opposite the word " Kaza,"
if it is land attached to a town the name of the place,
saying "such a place outside the town " opposite the
word " Kasaba," and if it is within the boundary of a vil-
lage the name of the village opposite the word " Karie."
And afterwards, opposite , the words " side " in the
columns for boundary, the present true boundaries of
the land will be written ; afterwards, in the column for
donums the number of donums will also be inserted,
as shown in the specimen forms ; but in places where in
matters of fixing the extent of land instead of donum, it
is customary to say " it requires so much seed," instead
of showing the number of donums the .amount of seed
which the land requires (9) will be inserted in the
column for seed, afterwards the column for the kind of
the land will be filled in as follows if the land is arable
land : against the word " Ushrli " (titheable) arable land
will be written, as shown in the specimen forms Nos.
IO2 The Ottoman Land Code. f
Certificate: 1, 3, 6 ; if it is grass land, grass land will be written, as
how to be
filled up. shown in specimen No. 5 ; if it is vineyard, garden, or
orchard instead of arable or grass land, the word vine-
yard, garden, or orchard will be written ; if it is land
paying a fixed equivalent of tithe, such as ground of
a Chiftlik (10), wood (11), forest, site of a mill, ground
of a threshing-floor (12), sheepfold (unroofed), straw-
barn (13), sheepfold (roofed) as shown in specimen
No. 2, the space opposite the words equivalent of
tithes will be filled up with whichever of the said
kinds it belongs to (14), and the amount of the
equivalent of tithes will be fixed ; if it is summer
or winter pasturage (15), or grass land (16), as shown
in specimen No. 4, it will be written opposite the word
taxable (Kessimli), and the amount of the tax will
be expressed ; if it is one of the said kinds of lands
attached to a Chiftlik (17), in order that its subjec-
tion to a Chiftlik should be known, in the certificate
for each piece, as shown in specimen No. 3, in the small
space opposite " subject to Chiftlik so and so " will be '
written. And in the certificate that will be given for
the ground of the Chiftlik building itself, as shown in
specimen No. 2, opposite the word " Titheable " will be
written Chiftlik site, afterwards the name of the
Chiftlik will be written in the said small space. Then
the column for cause of issue of title-deed will be
filled in as follows : If there is an old title-deed, as
shown in specimen 1, in the column for cause of issue
of title-deed, the word " exchange " ; and if the titlo '
Instructions Regarding Tapu Seneds. 103
! has been lost, as shown in the specimens 2 and
."> the word "'lost" will be written, and if the number
and date of the lost title-deed are known they will be
noted opposite the word " Lost." If there is no title-
divd (IS), and it is really in the possession of a person
who has proved his prescriptive right (Hak Karar) by
being in undisturbed possession for more than ten
years, as shown in specimen No. 6, the circumstance
and the expression " new " will be wTitten in the New title-
column for cause of issue of title-deed, and the
estimated price of the land will be written in the
column for estimated value, and the fees at five per
cent, will be written in the column for customary fees.
\ If it is dead land (Erazi Mevat) and the title-deed is
to be issued gratis (19), the sentence will be written in
the column for cause of issue of title-deed. In every
kind of land the would-be possessor's name and that
of his father will be written in the proper column.
3. When the alienation of a piece of land is going Certifi-
to be carried out, firstly, the columns stated in Art. 2 to be tilled
will be filled up as necessary ; secondly, as shown in up>
specimen 1, opposite the word "alienation," the
name and address of the alienor and his father will
be entered; thirdly, in the column for price of
alienation, the amount at which the land has been
sold will be written, and in the column for customary
. fees, the fees of alienation at five per cent, on the said
price will be entered. If such land has been alienated
TO4 The Ottoman Land Code.
gratis, the estimated price will be entered in the column
iiied f r estimated price, and the fees of alienation at five
11 1 > per cent, on the estimated value will be entered in the
column for customary fees (20). If it has been exchanged
with other land (21) according to the explained method,
the half of the total estimated values of both lands
shall be entered in the column for estimated value,
and the fee that shall be taken at five per cent, on
that half value shall be entered in the column for
customary fees.
4. When the inheritance of land (22) is going to be
cate: how
rilled up carried out after the procedure stated in Art. 2 has
c/ssionTo" been carried out, firstly, if the land has been inherited
from the father, as shown in specimen 2, " by the
death of the father, so and so," will be written in the
column for inheritance ; and if it has been inherited
from the mother, the name of the mother ; and if from
the children, the name of the son or the daughter
should be written. In every case the date of the death
of the deceased should be noted. Secondly, the
estimated value of the land should be entered in the
column for estimated value, and the fees at five per
cent, in the column for customary fees.
Consider- 5. As stated in Art. 10 of the foregoing Tapu
tobe m set ey -^ aw (23), when the alienation of land which has not
yet been transferred takes place, the price of aliena-
tion will be entered in the columns for price of
alienation and estimated value, and the total fees that
Instructions Regarding Tapu Seneds. 105
will be taken at five per cent, on each of these amounts Estimated
will be entered in the column for customary fees. Btafce< j j n
If land which lias not yet been transferred has been
alienated gratis, its estimated value will be entered without
in the column for estimated value, and the fees for tion.
alienation and transfer that will be taken according
to its value will be entered in a lump sum in the
column for customary fees.
6. After the procedure stated in Art. 2 has been Description
of auce.-tor
carried out with regard to certificates that will be to be given
given to possessors of the right to Tapu, as shown in
specimen 3, the name and date of death of the
L- deceased and his relationship to the possessor of the
right to Tapu are written at the head after the printed
sentence "Eight to Tapu (24) ; " afterwards, the value
assessed by disinterested possessors of knowledge is
written by the side of the printed sentence, " Equiva-
lent Value."
7. In certificates that will be given for pure Mahlul Certificate
Land which has been conferred by auction (25), as MaHdT"
shown in specimens 4 and 5, the way in which it has [o^fiij^
become Mahlul, that is to say, if there is no possessor U P-
of the right to Tapu, or there being one who abstains,
the matter will be written by the side of the sentence,
" Pure Mahlul," and the price fixed at auction will be
written in the column for auction price, and if it is
concealed (26) or disused land this procedure shall be
carried out exactly.
io6 The Ottoman Land Code. /
I
Footofcer- 8. After the procedure stated above has been
hovelled completely carried out, and the three forms of the
U P- certificate have been filled in in the stated manner, as
shown in the specimens : in the first empty space
between the lines at the foot of the certificate the kind
of the land, in the second the names of the owner and
his father will be written, and the place for the date
will be filled, and by the side of the printed word
" Mudir " the word " Kaza " is written, if it is attached
to the Kazas, and the word "Mai," if it is at the
Head-Quarters of the Liva. And if the land is in
partnership, the amount of the share is stated in the
first empty space.
>
Duplicate : 9. After the clerical procedure stated above has been
how made. com pi e t e iy carr i e d out, the right side of the certifi-
cate, that is to say, the paper with " Defter Khakani "
written at the top, shall be cut off, and after having
been sealed in the Kazas by the Hakim, Mudir,
Treasurer, and Clerk, at the Head-Quarters of the
Sanjak by the Hakim, Mai Memour, Treasurer, and
Clezk, shall be given to the person who is going to be
the owner of the land ; afterwards, the duplicate of
the certificate shall likewise be sealed and dated, cut
off at the place shown in the specimen, sewn on to the
old title-deed, if there is one for that land, and, if not,
kept by itself.
NOTE. It has been notified by Vezirial letter, dated 26. Zilhije,
1200, that separate Defter Khane and Tapu Memours having been
Instructions regarding Tapu Scneds. 107
/// the necessary parts of the Ottoman Dnmi,
',..-/ hm/'i? the
or T"/>" Clerk, 'in'/ in juices where the '
' established, the Mutessarifs, Kaimah-nins, and Mnl
itrs, should /V//<y-/-</>-////, until it is i'f into execution, //<
i's of the soil.
10. The certificates collected in each Kaza during Transmis-
the course of one month, together with the old title- tificates.
dt-ods attached to them, will be sent to the Head-
Quarters of the Sanjak to which they are subject,
enclosed in a Kaza Mazbata, filled up as shown in the
' Specimen No. 7, Kaza Mazbata, which will be sealed
by the Mejlis.
f
11. In the manner stated two forms of each certifi- Certificate
to be IB
cate will be cut off, the third form will remain as a three parts.
counterfoil and will be kept on the spot in order to be
referred to in case of necessity, and the appendix of
this counterfoil will also be likewise sealed at the same
time as every sheet is filled. The Mudir of the Kaza
and the Clerk are responsible for the keeping of these
counterfoils. Exactly the same procedure will also be Counter-
, carried out in the Kaza which is esteemed the Head-
Quarters of the Liva,
12. Separate summary registers for each Kaza will Summary
be kept at the Head-Quarters of the Sanjak. These how kept.
registers are also printed, and the summary of the
* certificates will be entered, as shown in specimens
io8 The Ottoman L:\nd Code.
felTstor7: Nos - 8 and 9 of the summary register, thus : Firstly,
how kept. a ft er the name of the Kaza has been filled in at the
top, the name of the village will be written under it,
and if the land is not in a village, but attached to a
town, then the name of the town will be written in the
column under the word " town." When the name of
a village has been entered in a column and it is
necessary that the name of that village should again
be written in the column next under also, no need
remains to write the name of that village again, and
the sign " m " will be put. Secondly, the kind of the
land will be entered. Thirdly, if the extent of the
land has been fixed in donums in the certificate it will
be written in the empty column under the column for >
donums, and if it has been fixed by seed it will be
written in the empty column under the column for
seed. Fourthly, the name <of the person who will be
possessor of the land will be filled in in the proper
column with the number of the certificate under it,
and the number of the book from which it has been
extracted will be noted under the column for number
of register. Fifthly, the total of the fees for title-
deed or Muajele and cost of paper in the certi-
ficate will be entered in the column under the
receipts column, and the total once in five of the
figures in the receipts column will be put in the
column for total by the side of it. In whatever
column the first of the month occurs, the whole of the
totals will be there collected, and the name of the
^Instructions regarding Tapu Seneds. 109
mouth in which tln-y will be entered in the Treasury Summary
Book will be entered in Greek style, in the column re - lsters
>h-l>ook, by the side of the column for summary
of totals. Sixthly, the date on which the certificates
are sent to the Imperial Defter Khane will be entered
in the column for it ; under it, in the column for
" events " in the Summary Kegister, such events as
inheritance, alienation, &c., and such matters as land
being attached to a Chiftlik should be entered.
13. After the tabulated forms of certificate coming
from the attached Kazas and those used at the Kaza
considered the Head -Quarters of the Liva have been
entered in the Summary Kegister in the manner
stated, as shown in Specimen No. 10, " Liva Mazbata,"
a Liva Mazbata will be prepared, the Mazbatas coming
from the attached Kazas, together with the tabulated
forms of certificate collected at the Head-Quarters of
the Liva will be put in an envelope enclosed in the
said Mazbata, the whole will be put in an envelope
addressed as follows :
On the top Land Mazbata.
In the middle To the Defter Emanet.
At the bottom From Kaza Sanjak.
which will be put in the post and sent direct to the
Defter Khane.
14. The date of the arrival of the Tapu title-deeds
prepared and sent from the Imperial Defter Khane
no The Ottoman Land Code.
issue of will be entered in the column for the date of arrival
dS. l ' of the -title-deeds in the Summary Eegister imme-
diately on receipt at the Head- Quarters of the Sanjak :
those for the Kaza administered at the head- quarters
will be delivered to their owners against the certifi-
cates which they hold : those for the attached Kazas
will be sent at once to their destination and likewise
delivered to their owners against the certificates
which they hold : the certificates thus collected will
be sent to the Head- Quarters of the Sanjak, and,
together with those collected there, will be sent in
sets to the Imperial Defter Khane.
15. Shaban, 1276.
1 1 1
V. A LAW ON THE REGISTRATION OF
CENSUS AND OF PROPERTIES.
This law consists of one part subdivided into seven
chapters and a conclusion.
The first chapter relates to the number and the
mode of appointment of the officials to be appointed ;
the second to the duties of the officials and to the
measures to be adopted for the registration of census
and of properties ; the third to the duties of the
managing commissions, to the management and
apportioning of the verghi and ternetu taxes, and to
other particulars ; the fourth to the village divisions
of six villages each, and of their duties ; the fifth to
the dealing with the occurrences (vukuat) ; the sixth
to the management of " seneds," papers, record-books
and kochans; the seventh to the fixing and preser-
vation of the plates bearing the numbers with which
the properties are to be marked ; and the conclusion
to matters of general bearing.
1 1 2 The Ottoman Land Code.
CHAPTEB I.
Registra- ^ he two classes of officials to be appointed for the
CT^andof" re oi' s tration of census and of properties are the
properties, registrars and the assessors. The registrars will be
twenty-two in number under a chief, and at the
beginning of the registration there will be four
assessors, twenty -seven officials in all.
/
CHAPTER II.
1. This staff will begin the registration in the head- Duties of
quarters of ^he province by dividing itself into two ^ stl
divisions ; each division taking up the work in one of officers.
the equal halves east and west, into which the head-
quarter city or town is to be divided. As the officials
will in the beginning be in the same place with their
chief, most of them will have learned the work when
4 the registration of the head-quarter is completed.
They will then proceed by degrees into the districts
and Xahies, where they will part into four divisions.
Each division will, at the place where it begins the
work, elect, through the notables of the place, two
salaried, able, and trustworthy assessors, and will then
proceed with the registration.
2. When, after the completion of the registration of Registra-
the hea 1 . -quarter and of the book thereof, the regis-
trutioA begins in the surrounding country, district '
district, at four places as stated above. The first and
superior registrar in each division will be the officer
of registration, and the others will be rough-copy
clerks, copyists, and recorders. As the assessors value,
the assessments must be recorded in the books. It is
H4 The Ottoman Land Code.
Assess- essential that the assessments be made correctly, and
the registration be proceeded with easily and quickly.
In the registrations of the head-quarters, assessment by
the (paid) assessors will be sufficient, because all the
officials and assessors being together, and the com-
mission of registration being on the spot, errors in the
assessments will be scarce, and, should any occur, it is
the duty of the commission to correct them at once.
In the country, however, where each division of
officials will have only two assessors, with a yiew to
secure correctness of assessment and despatch of
Assessing registration, an assessing committee of not more than
e ' six persons will be formed at the villages where the
officials arrive, from among the notables and trust-
worthy inhabitants of those and the neighbouring
villages. The paid assessors will be together with the
assessing committee, who will assess the properties
first, and if their assessment satisfies the officials and
the assessors that it represents the correct value of the
property concerned, it will at once be entered in the
rough list. Should there be any mistake it will be
amended as the locality and condition of such
property and its comparison with similar properties
may direct. Then the officials will proceed to another
village to register in the manner stated.
Assessing 3. Of the six persons appointed as stated above
from among the notables and trustworthy inhabitants
of the villages to form the assessing committee, one!
committee
Registration of Census and Properties. 1 1 5
will be the president, and the other five the members
of the commission. They will duly perform, in the
manner above described, the work of assessment,
which is their special duty at the time of
registration, and will always make inquiries with
reference to the applications which the people make
\ regards the question of assessment, and will also
consider any dispute, which may be settled by arbitra-
tion. The mode of election of the members of this
commission and their duties in these matters are laid
down in the special law.
4. Everybody knows that in the towns and villages choice of
%* the Mukhtars are of the lowest-class people, and that
notables and honest people decline this office ; while,
in order that reforms be carried out properly, it is
most essential that the conditions of the officials who
are in these matters be such as to inspire confidence to
the Government and the people. The first duty of the
-registration officials when arriving at a place will be to
dismiss the Mukhtars at once, and to elect new
Mukhtars, honest and trustworthy people, from the
notables of the place.
5. The election of the Mukhtars will be performed in Mukhtars.
elected.
the head-quarters of the province, through the Vali, the n<
Financial Officer, the Mufti, the Cadi, and one or two
(Moslem) ecclesiastics enjoying general confidence; in
' the head-quarter of the sub-province, through the
I 2
1 1 6 The Ottoman Land Code.
__
Mukhtars : Mutessarif or Kaimakam, the Financial Officer, and
how
elected. oue or two persons from the ecclesiastics or notables of
the people, or of the merchant class, possessing certain
grades; and in the district through the Mudir, the
Mui'ti, and one or two notables.
Enumera- 6. The second step of the officials after the election
dwellings. ^ the Mukhtars is to count all houses and dwelling-
places, and make a list of them ; then to prepare the
number-book of the city, town, or village, of which
the registration is to commence, and to write on the
c walls the old names of the quarter and street without
taming of
streets. alteration, and the numbers of the houses. When the
correctness of these numbers and names is ascertaine<
plates will be prepared accordingly and fixed.
Begistra- 7. After the numbers are marked correctly it is
census and time to begin the registration of census and properties,
properties, j^. j s k nown that hitherto, owing to the insufficiency of
the measures adopted for registration, the notables
and nobility of the population have been daring to
conceal persons and their wealth with a view to save
their children from military service, and to pay less
taxes than other people, and that they have been
neglecting to show the wealth and persons of other
people so as to buy their silence. To prevent the
recurrence of this, four measures will be taken :
i. Whosoever conceals person or wealth will be
imprisoned with hard labour for three years.
Rcgis/r-tion of Census and Properties. 117
ii. AT tlic time of the registration all male Census of
persons, grown or young, will go to the registrars
I report themselves to them. Women will be
registered on the report of their protectors or Of females,
representatives. After the registration a census
permit will be given to each individual. Unless
this permit is produced no law suit, whether relating: Census
permit.
to the Sheri or the Nizam, will be heard before any
Sheri or Nizam Court, nor shall any passport be
issued.
iii. All births and deaths will be reported in time
and registered in a special book.
iv. Several days before the registration begins
notice in print will be given to all the people of the
punishment to which concealers of person will be
subjected of the above second and third measures.
8. At the time of the census registration the wealth inquiries
and income of each person is at first to be inquired 3^ j^I
alter from the person himself, and if this information P ert - v -
seems unsatisfactory, considering the Trade and the
name of the man, inquiries will be made from notables
believed to be reliable, and the satisfactory infor-
mation as to the man's standing thus obtained will be
registered in the book. His old tax will also be
marked against his name in the special column in the
book.
9. When registering properties the true value of
1 1 8 The Ottoman Land Code.
True value houses, khans, shops, and similar properties, of farm?,
to ho mills, factories, and other income-bearing properties, of
unbuilt plots of land, vineyards, gardens, and ofall
lands in general, is to be brought to light in the
manner laid down in Art. 2, according to their situation
and their true value. The annual income of each kind
of property and land is to be ascertained, and searches
and inquiries and inspections of title-deeds are to be
made to find which of the properties bear income and
which do not ; which of the houses are occupied by the
particulars owners and which are let ; by what title the owners
o piopei y. p OSgegs ^6 properties, whether as rnulk by ijaretein or
by tapu. All these particulars will be registered in
the proper place in the special book under general and |
special numbers. Any sales and transfers which take
place at the time of the registration will be recorded
tain saleT" ^ the column of remarks, and in the book of
occurrences.
Registra- 10. The number and particulars of mosques, mes-
public jids, Government buildings, schools, places of worship
buildings. b e ] on gi n g to all communities and similar public
buildings should, at the time of registration, be re-
corded for information in the proper order.
Property 11. Properties of any foreign subjects assigned to
;ns ' their wife or relatives of Ottoman nationality should be
registered in the ordinary manner. As to foreign
subjects who do not possess property or house, but live
Registration of Census and Properties. 119
in hired shops and stores, the conditions, circumstances, census of
income and trade of such will be separately recorded. ahens -
12. The registration officials wiil examine the title-
deeds of all kinds of properties and lands. They will J
inform the officers of verification of lands, of any
transfers which may not have been formally carried
out, and will refer the matter to these officers in order
that the title-deeds be renewed by the Mehkerae or the
Evkaf. The new title-deeds of the proprietors who
are really unable to pay the transfer fees will be made
out gratis by the Cadis and the directors of Muajele
properties on stamp duty being paid in such cases.
The new title-deeds should bear a record of the name Contents of
of the quarter and street, and of the form, measurement, tl1
and the number of the house. In title-deeds of lands,
the general numbers, the limits and the form and
measure given in the emlak book, should be recorded.
I2O The Ottoman Land Code.
CHAPTER III.
Taxes: how It being important that in all the provinces the
agedane! n " apportioning, collection, and management of the taxes
appor- to be imposed after the registration of census, pro-
perties and income, be put under such a system as to
win the confidence of the people and prove advantageous
and easy to the Imperial Treasury, the operations are
hereunder described.
Managing ! For the apportioning, collection, and manage-
commis- men t of the taxes, a Commission will be formed of the
sion.
director of Census, the director of Muajele properties,
and three Moslem and three non-Moslem notable
(Ottoman) subjects of unspotted reputation, under the
presidency of the financial officer and the supervision
of the Yali of the province. Other persons may, if
needed, be invited to participate in the deliberations.
The above-mentioned six Moslem and non-Moslem <
members will be elected by the Vali, the Muhasebiji,
the Cadi, and the Mufti, who will submit the result of
the election to the Sublime Porte by a Mazbata under
their seals reporting the qualifications of the elected,
Rotation of whereupon an Imperial Order will be issued and carried
members. out Qne i}iM of ^^ elected mem bers will leave *
commis-
sion.
Registration of Census and Properties. 121
office every year, and others will be elected and ;ip-
poiuted in their place in the manner described.
2. This Commission will detach receipt forms from Duties of
the printed special counterfoils to be prepared every
three years according to the accounts extracted from
the Einlak and trade permit books. They will fill the
amounts in the receipt forms of verghies and will irive
these to the Mukhtars, and will hand the trade-permit
forms to the heads of tradesmen. The latter will fill
in the trade-permit forms, the names and amounts, in
the presence of the elders and notables of the quarter
according to the account given them. As they (the
i Mukhtars and heads of tradesmen) collect the taxes by
fixed instalments, they will note the receipts in the
receipt column of the Verghi forms, and on the back of
the trade permit forms. When the collections are
completed they will hand these forms to the Treasury,
together with the last instalment. The revenue officials Duty of
will, after comparing them with the counterfoils and officers.
with the book, stamp them on the special place with
the seal marking " Eeceived." These receipts will then
,be returned to the Mukhtars and heads of tradesmen
to be distributed one by one to the respective people to
whom they belong.
3. The receipt forms of the military contribution tax
will be written up from the counterfoils according to
*the accounts extracted every year from the census book,
122 The Ottoman Land Code.
'
Receipts for and will be handed to the heads of the communities
contribu- for collection of the tax, and the transactions will be
' ax ' conducted in the manner explained in Art. 2.
issue of 4. At the expiration of the period for which the
receipt forms of the taxes mentioned are prepared, new
forms will be distributed at the beginning of March.
The formalities of these should be completed by the
end of that month at the latest, and the collection
should commence. After the collection is completed
the transaction will be carried out in the manner
described in Art. 3 (probably 2 is meant).
Scale of 5. The Commission will inspect the repairs and the new
buildings in the city and its neighbourhood, will assess
and register the value thereof and assess taxes on them
at four per thousand on the total value, four per cent,
on rent, and three per cent, on trade profits. Besides,
a registration fee for one year only will be taken at the
rate of one per thousand from the total of the value and
Appiica- rent, and half per cent, on trade profits. The excess of
excess. tax (on the old assessment) thus occurring will be paid
to the Treasury towards the decrease caused by the
burning or demolition of the properties originally
registered. When a great fire or earthquake or
calamity happens, and the tax on the properties
registered is decreased to such an extent as not to be
covered by the increase from new buildings, the
decrease cannot be made up by increased taxation on
Registration of Census and Properties. 123
tht 1 remaining properties, nor should the owners of the Decrease of
burned or demolished properties p;iy taxes on the old detraction
registered value of their properties. The values of the f i> r "-
of such properties will be rightly assessed by the
Commission tit the head-quarter of the province, and
the tax on such value only will be collected. It will
then be submitted to His Imperial Majesty to remit
the decreased tax pending its being covered by the
erection of new buildings.
6. The building tax shall be managed by this Com- Building
mission. When a new building is to be erected in the
head-quarter city of the province, information should
|be given at first to this Commission, who will register it
in the building book, receive the tax, and give the
permit. The completion of the building should be
reported to the Commission, who will assess its value
and impose the Yerghi accordingly. Should any build-
ing be erected without the information of the Com-
mission, even though it be built legally, the carpenter
or architect who built it will be imprisoned for three
months, and the proprietor will be fined a sum equal to
two years \ 7 erghi of the building for disobedience to the Regulation
new rules. If the building is built in contravention of " ntrs m
the building law it will be demolished by the Govern-
ment, and the architect will be imprisoned six months.
This rule will be carried out exactly in the head-
quarters of sub-provinces and districts. The Kaima-
kams, Mudirs and Councils will see that the law is
124 The Ottoman Land Code.
\
Buildings, respected, and will report the occurrences to the Central
Commission without loss of time, as prescribed in Art. 2,
Chap. 5.
Appiica- 7. After the registration, sums will be appropriated
taxes. for municipal works and for the taxes of widows, orphans,
and poor people unable to pay taxes. When any work
of public utility is required the Commission will submit
the matter in writing to the Council of the province,
whereupon the Grand Vizier's authority shall be asked,
and if obtained the work will accordingly be executed
and paid for out of the appropriation. The Treasury
will pay from the appropriation the taxes of such poor
people for whose inability to pay a certificate shall haveV
been given by the elders, notables, and Mukhtars of
their quarter, and whose poverty has been certified by
the officials on reference to the census register.
Clerk and 8. As under the system of collection of Yerghi
described the work of the Eevenue Department will
naturally decrease, a competent clerk and a copyist
(from that department) will be given to the Tax
Commission.
Transmis- 9- The census books once written up by the registra-
tion officials will be delivered to the Inspector of Census
of the province. After this, all occurrences will be
recorded at the Commission by the registrar of
occurrences, according to the established rule.
Registration of Census and Properties. 125
10. No addition under the name of expenses or under Tax not to
be unlaw-
any other name will be made on the tax allotted to the fully in-
people 1 .
11. The registration officials will supervise the execu- Duty of
tion of this till the end of the work. officers
126 The Ottoman Land Code.
CHAPTEE IV.
Village ! Each six villages will form a division, and each
divisions. yiii a g e w ji]_ elect a member in the manner to be stated
in the election law, of whom one will be the president
and five will be members.
Duties of 2. They will meet in summer once a week, and in
ah-isfonal c ld countries once in two weeks, on a fixed day at one
officers. O f foe six villages in turn: will apportion the trade
tax, if there are any tradesmen in their villages, accord-
ing to the condition of each tradesman every year. It
is obvious that information will be received (at the
head-quarter of the district) of any transfers and sales
of properties and new buildings, which will not be
erected unless permission is given by the District
Council, but should any buildings be built without
permission they will inform the Council of the district
of such buildings, and of those which have been ruined
or burned, and will report all births and deaths, and all
changes of residence.
CHAPTEE Y.
DEALING WITH OCCURRENCES AT THE HEAD-QUARTER
OF THE DISTRICT.
] . The census registrar will record in the new form Occur-
hanclbook in his hands any matters concerning the
census which are found in the handbook of occurrences with -
received from the village divisions. Once in three
months he will prepare a schedule of the census
f occurrences on the printed form, showing the general
numbers of each name in a particular column. This
schedule will be certified by the Council of the district
and forwarded to the Council of the sub-province to be
handed to the census clerk. The occurrences referring
to properties will be caused to be recorded in the book
kept by the clerk of the Council : then the changes in change
the condition of the properties and their sale and
transfer will be entered with the general number on a P ert 7
, special schedule, which will be sent once a year to the
Council of the sub-province to be given to the Ernlak
clerk there. The occurrences of the trade tax will also
be recorded by the district clerk in the handbook, and
a summary list without names showing the increase or
decrease of the trade tax will be sent once a year to the
^revenue officer of the sub-province.
occur-
rences.
128 The Ottoman Land Code.
DEALING WITH OCCURRENCES AT THE HEAD-QUARTER
OF THE SUB-PROVINCE.
Record of 2. From the three kinds of statements of occurrences
to be reported to the sub-province at fixed times by
the districts, the census clerk will record in his hand--
book the occurrences of the census, and the revenue
officer will register the occurrences relating to the
property and income taxes in the respective handbooks.
They will then forward the statements to the Com-
mission at the head-quarter of the province.
MANAGEMENT OF THE OCCURRENCES AT THE HEAD .
QUARTER OF THE PROVINCE.
Record of 3. The three kinds of statements received from the
rences. sub-provinces will be registered on the day of their
receipt in the special handbooks and entered in the
book of occurrences. The occurrences of the property
tax and of census will be entered name by name in
their columns, but the occurrences of the income tax will
not be entered name by name, but in one sum for each
village. If on comparison with the register the increase <
or decrease shown by these three reports of occurrences
are found very great, every search and inquiry should
be made to find out if loss has been caused to the
Treasury by recklessness, or if the people have been
damaged in order to increase the Government revenue
and to make the amendments. The persons who have *
Registration of Census and Properties. 129
been the cause of these faults will be tried and reported
to the Porte.
4. As the occurrences will increase or decrease the Record of
taxes, the amendments of taxes mentioned in the men t of
instructions to the managing committee will be recorded taxes-
on the Kochans and carried out accordingly the next
year.
5. A clerk, named the diary keeper of the Com- Diary
mission, will be appointed for the present to the Central
Commission, to keep the accounts of the Kochans and
forms to be distributed to the provinces, and to see that
these are not printed more than necessary and wasted.
Another clerk, called the comparing clerk, will be Comparing
appointed, whose duty it will be to compare the
occurrences with the register and to note the correct-
ness of the births and deaths, constructions and transfers,
and of the new permits, by reference to the surnames
and to the names of proprietors recorded in the
register.
130 The Ottoman Land Code.
CHAPTEE VI.
MANAGEMENT OF KOCHANS.
Manage- 1. The Central Commission will cause to be dis-
Kochans tributed, village by village, through the first-class
registration officials, the lithographed Kochans of
Verghis and income taxes, and of census prepared
according to the statement furnished by the diary-
keeping clerk from the register. The census permits
will be given only once, but for those who are born or
have transferred their residence since the registration,
the Commission will in time cause to be prepared from
the occurrence-reports census-permits on the printed
forms, showing the special and general number of their
names and other particular marks, and will send them
to the districts. The Mudirs of the districts will hand
these to the Mukhtars to be given to the people to
whom they belong. In the district of the head-quarter '
these will be distributed through the Mukhtars.
Supply of 2. Once every three years in the month of January
the Commission will send to the sub-provinces separate
bags for each district containing the Yerghi and income,
tax Kochans prepared from the register. When these
Registration of Census and Properties. 131
reach the sub-province they will be sent without delay Distribu-
te the districts. The districts will hand these papers to K^,^
Xukhtars of the villages and quarters, who will
hand them to the people one by one. As stated in
the instruction to the Central Commission, each pay-
ment by the people will be noted on the special place
of the Kochan, and sealed with the receipt seal of the
treasury of the district on the special place or on the
back of the Kochans, the Eochans being (each time)
returned to the Mukhtars to be distributed to the
people. After these Kochans are sent backward and
forward between the head quarters of the district and
the villages for three years at fixed times, the fourth
year they will be sent from the head quarter of the
district to the head-quarter of the sub-province to be
checked ttith the counterfoils kept at the Kevenue Checking ot
Office and with the accounts received from the district,
and returned at once to remain as receipts in the
hands of the people. New Kochans will then be
detached from the counterfoils and forwarded to be
managed for three years at the districts, and returned
the fourth year to the sub-province to be dealt with in
' the manner described, and so on continuously.
3. The carrying out of the sale or transfer of any Taxes must
kind of property and land by the Courts and Evkaf before
officers will absolutely depend on whether the taxes transfer -
% thereof have been paid. The Cadis and officials \\ill
not be able to effect any sale or transfer unless they
K 2
132 The Ottoman Land Code.
Taxes to be see on the Kochan that the taxes have been paid, and
convey 6 - 1G they will note on the title-deeds which they writr the
general numbers marked on the Verghi Kochans and
the numbers and folios of the books in which the
properties are registered.
PREPAKATION AND MANAGEMENT OF THE RECORD
BOOKS.
Record 1. As the registers will be large and made only once,
where' they will be prepared and bound at the Imperial
Printing Department. All kinds of Kochans and
occurrence handbooks and all forms relating to the
registration will be printed at the lithographic press of
the Commission.
Books to be 2. The clerks having the best hand will write up
the registers at the Commission. Care should be
taken that they be perfectly correct. No erasure
should be made, but any mistakes should be crossed
by a thin line so as to allow the original writing to be
read. Great care should also be taken of the correct-
ness and cleanness of the handbooks to be kept at the
sub-provinces and districts. A correct and clean copy
of the register in good writing should be made and
sent to the Chief Defteri Khakani office (at
Constantinople).
( 133 )
CHAPTEK VII.
MANAGEMENT AND PRESERVATION OF THE NUMBER
PLATES TO BE FIXED TO BUILDINGS.
1. The numbers of the buildings \vill be fixed Numbers
on build-
according to the maps which will be given to ings.
the officials, and care will be taken always for their
preservation. If the number plate of a building
f is lost or broken at the villages, the village division
commission ; at the head-quarter village of the
district, the Mudir ; at the head-quarter town of the
sub-province, the Kaimakam ; and at the head-quarter
city of the province, the Mudir of the city employed
by the Commission, shall ask the proprietor to fix
a new one, and if he does not do it they shall report
him to the Government and have him compelled to
do so.
' CONCLUSION.
1. The occurrences of properties and lands and of Transmis-
census are always recorded in the Chief Defteri records.
Khakani office and the Jeride Muhasebe office. The
latter being transferred to the Chief Defteri Khakani
office, the reports of these two kinds of occurrences
134 The Ottoman Land Code.
Transmis- should at fixed times be sent to the Chief Defter! **
records. Ehakani office by all the managing commissions h;
the Empire.
inspectors 2. It being most essential that this registration be
of records.
carried out strictly in accordance with the rules and
regulations, two inspectors will be appointed from the
officials who have been in the work from the com-
mencement : one for Turkey in Europe, and one, for
the present, for Turkey in Asia, to make inspections
till the completion of the registration.
Punish- 3. Should any official act contrary to the rules laid
ment of , ,
officials. down in this and the previous drafts, or be lax in
performing his duties in due time, he shall be tried
and reported here by a Mazbata by the Council of
the province.
14. Jemaziul evel, 1277.
( 135 )
VI. SUPPLEMENT TO TAPU LAW,
127;).
Actions about mortgage (Fe'ragh bil vefa) of Arazi
Mirie and Arazi Vakfie of the Takhsisat category, in deed.
which the mortgage is not bound by deed, will not be
heard. (See Note 35 of Notes to 2.)
26. Safer, 1278.
136 The Ottoman Land Code.
VII. LAW DECIDED ON BY IMPERIAL
IRADE CONCERNING THE SALE OF
LAND OF CERTAIN DEBTORS FOR
THE PAYMENT OF DEBT.
Certain In accordance with the old law only the house which
debtor* not i g lowest in value of a debtor shall be left, the sale of
to be sold, j^ o th er property having been decided on. A quantity
sufficient to manage that house of his Arazi Mine
will be left, the remainder shall be sold by auction.
If, after these have been separated, the value of the
things sold' is not sufficient to pay the debt, the
remaining sum shall be collected from his sureties.
Sale of Debts on account of farmed revenues which the
property, farmers have transferred to others will be treated in
exactly the same way as debts to Government ; in
accordance with the law it is necessary that the pay-
ment of the debt should be made by the sale of all the
debtor's property and effects, with the exception of one
house. But, in accordance with the Imperial Land
Law, Arazi Mine cannot be sold for debt. In the
event of its being decided that the debtor's land can- <
Sale of Land for Debt. 137
i
not be sold, Government claims are exempt from this Exemption
, of Govern-
decision. This exemption is applicable to sums due me nt
directto the Government Treasury ; it is not applicable c
to sums due to persons or to farmers of revenue.
Eebi ul evel, 1279.
The provisions of this law contrary to the laws for
the sale of immovable property for debt, and Arazi
Mirie and Mevkufe, and Musakafat and Musteghillat
Vakfie, satisfying debt after the death of the debtor
are abrogated.
138 The Ottoman Land Code.
VIII. REGULATIONS CONCERNING
TABULATED CERTIFICATES.
Preiimi- In order to facilitate the procedure of alienation,
nary.
inheritance, and other matters of all Musakafat and
Musteghillat Mevkufe in the provinces in accordance
with the compact system now adopted, as it is
necessary that henceforth printed tabulated certificates
should be cut out of the printed counterfoil registers,'
sent everywhere and issued as shown in the Instruc-
tions, these Kegulations contain certain matters deri-
vative from this.
Tenure of 1. Henceforth Musakafat and Musteghillat Mev-
lands 11 kufe shall not be possessed by any person in any way
without a title-deed from the Yakf. By this means
persons who have no title-deeds, and those who have
title-deeds from places other than the Yakf, will be,
Necessity obliged to get new title-deeds. The necessary pre-
deeds cautions in this respect will be carried out by all the
officials.
2. The columns of the tabulated forms of certificate
will be filled up in the manner shown in the printed*
7\\ ;; r ;/ /. r tions Concern ing Ccrfifici r tes for. 139
instructions when a nrrson takes a title-deed in any Certificate:
1 how
way for Musakafat and Musteghillat, with the excep- tilled up.
tion o*f those leased by Muajele, a register will be
prepared in accordance with the register of which a
specimen has been sent of the number collected daring
one month, and together with the necessary fees, &c.,
will be sent to the Imperial Evkaf Treasury. If they
are detained more than one month in their locality
the Evkaf Mudir will be responsible.
3. Though the auction price or equivalent value of Separate
Musakafat and land leased by Muajele will be re
delivered to the Treasury in accordance with the
\ system, and the totals will be included in the register
sent to the Treasury once every three months as
stated in Art. 45 of the new law, in order to guard
against causing interruption to the Treasury, besides
the said register, an individual register (Mufredat
Defter) will be prepared and filled in in the method of
the tabulated forms of certificate stated in the fore-
going articles, and sent together to the Imperial Evkaf
Treasury.
4. The following fees will be taken : Duties.
5% on the gross value of titheable places, and on
the value of the land only of places paying fixed
rent (Mukata) when alienated and inherited.
2J% on the mortgage (Istiglal) and cancellation of
* the mortgage (Istiglal) of the said places.
140 The Ottoman Land Code.
3% on the alienation of places held in ijaretein.
1J% on the inheritance, mortgage (Istiglal), and
cancellation of the mortgage (Istiglal) of the said
places.
Double 5. As a restrictive measure, double the fees will be
certain taken if a possessor of Musakafat and Musteghillat by
inheritance does not have the inheritance procedure
carried out at the time of settlement, and subsequently
or at the time of sale has it carried out.
New title- Q According to the new system, the writing of
marginal notes on title-deeds having henceforth been
abandoned, new title-deeds will be issued in every f
case. Three piastres' cost of paper and one piastre
clerk's fee will be taken for every title-deed. Nothing
else will be levied.
Disposal of 7 > if it is ascertained that the land of a person who
land when
no heirs, dies without heirs and which has become the right of
Tapu has been taken and concealed, as stated in Art.
71 of the Imperial Land Law, if the person who has
taken it is an owner of the right to Tapu it will be
conferred on him for the Tapu value at the time
when its concealment is ascertained ; if he abstains, or
if the person who has taken it is not an owner of the
right to Tapu, the said land will be conferred on the
candidate at auction. If within one year from the
date of the arrival at their destination of the counter-
Regulations Concerning Certificates for. 141
f
foil registers in accordance with this new system, Grant of
without having a valid disability, such as minority, JJJ^*
insanity, imbecility, or absence from the country, the
owner of the right to Tapu does not apply to the
Evkaf Mudir for a certificate in order to obtain a new
title-deed for this kind of concealed land, and
subsequently appears, the Tapu value will not be
sought ; the land will be offered to him once for the
price fixed at auction, if he is a candidate it will be
given to him, if not, a deed showing that he withdraws
will be taken from him, and the land will be given to
another candidate. It will be the duty of Evkaf
Mudirs to make the matter known in a proper manner
* beforehand for the information of everybody.
8. On payment of only three piastres' cost of paper Grant of
and one piastre clerk's fee, Boz and Kiraj places J^
which are far from the most distant habitation may be
granted gratis, in order that they may be newly
opened up into arable land, but arable land which has
become vacant (Khali) without owner is exempt from
this rule, it will be granted to the candidate at auction.
, The newly opening-up and making into arable- land
of the said Boz and Kiraj places depends on permission Leave to
being obtained from the official ; as stated in Art. 103 of
the Imperial Land Law, the Tapu value at the time of
seizure and cultivation will be taken from the owners
of places which have been opened up and made into
* arable land without the permission of the official after
142 The Ottoman Land Code.
\
Occupation the date of publication of the said law, and the land
hinds 8 * w ^ ke g ran ted to them. This decision is also as
stated in the preceding article. If without excuse the
owner does not come within one year and ask for a
title-deed on paying the Tapu value, as stated, it will
be conferred on him for the present Tapu value.
Definition 9. The Tapu value taken for land conferred on an
vaiue PU owner of the right to Tapu does not mean the amount
ascertained at auction or as stated by a person from
outside, but the real value of the land according to
equals on the information of unbiassed possessors of
knowledge. It being contrary to law to put up to
auction Arazi Mahlul to which there is a right to Tapu, *
and the Tapu value that will be taken being the
lawful right of the Vakf, if the possessor of knowledge
has received money, or in any other way founded on
bias states more or less than the real value, he will
be punished in accordance with the Imperial Penal
Code (1). The Evkaf Mudir and Civil officials will
be held severally responsible in this respect also.
Exactly the same care will also be bestowed on
matters of estimating the value, in order to take*
fees of alienation and inheritance.
Grant of 10. As there will be no right to Tapu in Musakafat
an( ^ landed property held in Ijaretein, those of these
which become entirely Mahlul will be leased to the
candidate at auction according to the former system.
Regulations Concerning Certificates for. 143
r-
When a small or large share of a not entirely Mahlul Auction of
khan, bath, shop, garden and such like thing of the pr0 perty.
landed property category becomes Mahlul it will be
sold to the candidate at auction. But houses are
exempt from this law ; if a share becomes vacant it will
not be sold by auction, but leased to a shareholder on
the valuation of a competent person (2).
11. On payment of alienation fees new title-deeds issue of
will be issued to persons who, in accordance with ^^
Art. 78 of the Land Law, prove their prescriptive
right (Hak Karar), that is to say, to persons who by
inheritance, alienation from another, or relying on one
'of the means of acquiring possession from those who
are authorised to grant land, have gained the right by
undisturbed possession for ten years and have no title-
deed, and also to persons who have no title-deed for
Yakf land on taking a Mulk Hujet for the vines,
buildings and trees of places of which the land is
Yakf, and the vines, trees and buildings Mulk. But
this also is on condition that it shall be carried out
within one year, as stated above. If there are any Penalty on
persons who without excuse do not take out title-deeds ggf new
within that time, double the fees will be subsequently tltle ' deeds -
taken from them.
12. New title-deeds will be issued for the Musakafat
and Musteghillat of persons who have valid old title-
deeds sealed with the seal of the Muteveli of the
144 The Ottoman Land Code.
. /;
Issue of Vakf, and who wish to exchange them, on payment of
deeds of only three piastres' cost of paper and one piastre clerk's
an^Muste- ^ ee * But papers without seal or sealed with an un-
ghiiiat. known seal will not be looked upon as authentic ; this
kind of land will be treated as held without title-deed.
New title-deeds will be issued on payment of the
customary fees, cost of paper, and clerk's fee, if the
prescriptive right (Hak Karar) is established; if not,
the concealed land procedure will be carried out. ,
New title- 13. Persons who prove by the registers that they
loss of old. have lost their title-deeds must take out title-deeds
within one year. Title-deeds will be issued to
persons who do not take out title-deeds during *
this period on payment of the customary fees.
Only three piastres' cost of paper and one piastre
clerk's fee will be taken from persons who wish to take
out title-deeds during the said time, and if there are
any persons who wish to exchange their old trustworthy
title-deeds, only three piastres' cost of paper and one
piastre clerk's fee will be taken from them also, and
the tabulated forms will be filled up and sent to the
Imperial Evkaf Treasury. This course will depend*
entirely on the owners themselves showing a desire.
Sale of 14. When only a known share of land held in
share la* partnership is going to be alienated to another it will
laud. b e offered to the partner, and if he refuses to take it a
deed will be taken from him and the matter will be
Regulations Concerning Certificates for. 145
noted in the alienation column of the tabulated Di\-:
certificate. When land held in partnership is r<u'n^ to JhT^iami.
be separated and divided, as stated in Art. 15 of the
Imperial Land Law, it will be divided in an equitable
manner. A note will be made in the alienation
column of the said tabulated form that it has been
divided in accordance with the law, and the title-
deeds in their possession will be changed.
15. If a portion of a place held by one or several Certificate
title-deeds has been separated and alienated to another ance^
in accordance with the rule that will be carried out in
other alienations, a certificate will be issued to the
alienee, and its other procedure will be carried out.
As the boundaries and amount stated in the old title- New title-
deeds in the possession of the owner will be changed
on account of such separation of a piece, the title-deeds
will be changed.
16. When persons to whom certificates cut out of Sale before
the counterfoil registers in accordance with the system n^utie-
now adopted have been issued are going to alienate to deeds-
^ another the places before the arrival of the title-deeds
from the Imperial Evkaf Treasury, after the alienation
fees have been taken in accordance with the rule,,
another certificate will be issued to the alienee, and in
accordance with the system the certificate in the hands
of the alienor will be attached to the duplicate of the
*new certificate issued to the alienee and sent to the
L
146 The Ottoman Land Code.
Imperial Evkaf Treasury. In the column for " Cause
of Issue of Title-Deed " in this new tabulated certificate
will be written u as the title-deed has not ye't been
received from the Imperial Evkaf Treasury, the old
certificate is sent herewith attached." If the title-
deed in accordance with the old tabulated certificate
has been prepared and sent to its destination before
the arrival of the new tabulated certificate at the
Delivery of Imperial Evkaf Treasury, it will be kept at its desti-
new title- ./'.
deed. nation, and when the title-deed prepared in accordance
with the new tabulated certificate arrives at its desti-
nation it will be delivered to the alienee, and the
Disposal of detained title-deed will be attached to the certificate
taken from him and returned to the Imperial Evkaf' (
Treasury. Exactly the same procedure will be carried
out concerning persons who possess temporary certifi-
cates and who die before the arrival of the title-deeds.
CONCLUSION (3).
If any doubts arise in the execution of the new
Rystern, explanation must be asked for from the
Imperial Evkaf Treasury.
25. Ramazan, 1281.
9. February, 1280.
( 147 )
IX. INSTRUCTIONS (1).
It being one of the requirements of the Imperial Uniform
Decree that the legal procedure of Arazi Mevkufe
should be assimilated to the Imperial Land Law (2)
in force up to the present published in the begin-
ning of Zilhije, 1274 (3), and it being necessary
that the duties and other proceedings of the Arazi
Mevkufe officials should also as far as possible be
in accordance with the Arazi Mirie system, it is
necessary that the title-deeds issued henceforth in
accordance with the Provincial Title-Deeds Law
now drawn up should be put under a symmetrical
organisation and law. Printed tabulated certificates
having now been prepared to take the place of the
temporary certificates issued by Evkaf Mudirs until
the arrival of the title-deeds issued to owners of
Musakafat and Musteghillat from the Imperial Evkaf
Treasury, it is not necessary to change the temporary
certificates issued locally up to the piesent and fur
which the fees and cost have been taken for these
printed certificates; but, as it is decided that these
printed certificates should be given for title-deeds
issued hereafter, these Instructions have been prepared
in order to explain the procedure which should be
L 2
148 The Ottoman Land Code.
carried out concerning the said printed tabulated forms
of certificate.
Forms of 1. The said tabulated forms of certificate are in the
form of bound registers. Commencing with 1, different
numbers have been put in these registers for each
place where there is an Evkaf Muclir. Each register
contains two hundred forms of certificates, and each
form of certificate is in triplicate. The certificates in
each register will be used commencing from the left,
the first will be numbered 1 and so on up to 200.
In order to explain how they are to be used ten speci-
mens of certificate and one specimen of the register
with Mazbata at foot to be sent to the Treasury have
been sent to each place where there is an Evkaf Mudir.
Certifi- 2. In the event of alienation and inheritance, and
filled up. on issue of title-deed to those who have none, and on
exchange of old title-deeds in fine, as shown in the
specimens, the name of the Sanjak will be written by
the side of the word " Liva " in all three copies of the
certificate ; the name of the Kaza in which the place is
situate will be written in line with the word "Kaza/' if
the place is attached to a town, as in specimens 1, 3, 4,
5, 7, 9 and 10 ; the name by which the place is known
will be written by the side of the word "town " thus
"place in the neighbourhood or within the town," if it
is in the boundaries of a village, as shown in specimens
2, 6 and 8 ; the name of the village will be written by
the side of the word " village." In the column in whicii
Instructions Rcg.v-di. for. 149
are written the numbers of the volume and registration Certiti-
of the o^l title-deed, to the left of this column, as shown ho*
in the spec-mien^, if tlr-re is a title-<L-e<l issued in hl
lance with the new law, the numbers of the
volume and registration put on the said title-deed will
be put in tlrese columns. In the line of the word
" superintendence " the words " Mazbut from Hare-
mein," as shown in specimens 2, 7 and 8, will be
written if the Vakf is under Haremein superintendence
and Mazbut ; and the words " Mulhak to Haremein," as
shown in specimen 1, will be written if it is Mulhak ;
and the words " Mnzbut from Imperial Evkaf," as in
specimens 3, 4 and 6, will be written if the Vakf is
kinder Imperial Evkaf superintendence and Mazbuta ;
and the words " Mulhak to Imperial Evkaf," as shown
in specimens 5, 9 and 10, will be written if it is Mulhak.
In the line of the word " beuefice," if the benefice of
the Vakf is known, its nature and the quarter in which
it is situate will be written, as shown in specimens 2, 3,
5, 6, 9 and 10. By the side of the word " Vakf" the
name and title of the Vakf will be written, as shown in
all the specimens. In the line of the word " bound-
aries/' and in the columns of the word "side," the
present true boundaries will be written, as shown in all
the specimens. If it is land for which the expression
" occupying seed " is used, as in specimen 2, the
amount of seed which the land receives will be written
^n the seed column by the side of the word "seed."
If the expression donum is used, as shown in specimens
150 The Ottoman Land Code.
i
Certifi- 5, 6, 8 and 9, the number of donums of land will be
tfbJ filled written by the side of the word " donum." Jf it is
U P- Musakafat and the number of ziras of the site is
known, the number of ziras will be written as shown in
specimens 1, 7 and 10. If it is Musakafat and the
number of ziras is not known, or if it is a Gedik,
it will be left open, as shown in specimens 3 and
4. If it is mixed with another Vakf, as shown in
specimens 1 and 2, the words " mixed with Vakf,"
or "mixed with another Vakf," will be written in the
small column to the left of this column, separated by a
line. All the contents will be written by the side of
the word " contents," as in specimens 1,3, 4, 7 and 10. f
Then the column for the nature of the place will } >
filled up thus : If it is a titheable place, arable land,
or meadow will be written by the side of the word
"titheable," as shown in, specimens 2, 5 and 8. If it
is a place paying a fixed equivalent of tithe, such as
meadow, vineyard, Chiftlik, wood, forest, mill, threshing-
floor, uncovered or covered sheepfold, &c., the word
vineyard, or garden, or whatever it is, will be written
in the line of the word " fixed," as shown in specimens
6 and 9. If the said kinds of lands and places are"
attached to a Chiftlik, in order to know their subjec-
tion to such Chiftlik, in the certificate for each title-
deed " Subject to Chiftlik " will be written in the
small column to the left, as in specimens 2 and 6.
After the words " Chiftlik site " have been written by ,
the side of the word Mukata if it is Mukata, and by
Instructions Regarding Certificates for. 151
the side of the word Ijare if it is Ijare, in the certifi- Certifi-
cate i^sm'd lor the site of the Chiftlik building, the to be filled
name and title of the Chiftlik will be written in the said up-
small column. The annual ijare of properties held
in ijaivteiu (4) will be written in the line after the
words " house or shop," as shown in specimens 1, 3, 4
and 10. For such places as garden, bath and khan,
the words garden, bath and khan will be written
instead of house and shop. Then the column for
" reason of issue of title-deed " will be filled up thus :
If there is an old title-deed, the words " in exchange "
will be written, as in specimens 1, 3, 4 and 6. If the
title-deed has been lost, the words " on account of loss "
* will be written, as in specimens 2, 5 and 7. If the
date of the lost title-deed is known, it will be noted in
the line of the sentence " on account of loss," as in
specimen 7. As there is much waste (Khali) land
belonging to the Evkaf, which is from time to time
leased by auction to the candidate, the facts will be
recited in the column for "reason of issue of title-
deed," as in specimen 8, and the word " new " will be
written. As some owners of houses and lands will lose
'their title-deeds and apply to the Vakf for new ones,
the facts will be stated as shown in specimen 9, and
the words " on account of loss " will be written. The
facts relating to title-deeds exchanged will be stated
in the column for " reason of issue of title-deed" in
the certificate, as shown in specimen 10, and the words
" in exchange " will be written.
152 The Ottoman Land Code.
Certifi- 3. When the alienation of land, houses, &c., is being
to be filled carried out: Firstly, the columns stated in Art. r 2 will
be filled up. Secondly, as shown in specimen 1, the
name and address of the alienor and his father, and
definite alienation, will be written by the side of the
Considera- word " alienation," and the real price for which the
stated. place has been sold will be written in the column for
price of alienation, as in specimen 1. If a property is
going to be mortgaged (Istiglal), or is going to be
freed from mortgage (Istiglal), after the procedure
as before stated in Art. 2 has been entirely carried
out, if it is going to be mortgaged (Istiglal) "on
account of mortgage (Vefaen Feragh) to , son
of ," will be written in the line as in specimen 3. JP
If it is going to be released from mortgage " cancel-
lation of mortgage (Feragh) to , son of ,"
will be written by the side of the alienation column,
as in specimen 4. As in both specimens 3 and 4
the amount of the price received will be written in
the line for " equivalent of alienation ; " the " equiva-
lent received" if it is a mortgage (Istiglal), and
" the price received " if it is a cancellation. When
Facts as to the inheritance of a property is going to be carried "
must be 11 ' 6 out > after the Procedure stated in Art. 2 has been
stated. carried out, if the property has been inherited
from the father, "on account of the death of the
father, - , son of ," will be written, as shown
in specimen 2. The same will be written if it is in- (
herited from the mother, or if, being land, it is inherited
Instructions Regarding Certificates for. 153
from the sun or daughter. The date of the death of the
deceased will also be noted. The estimated value will
vritten by the side of the words " estimated value."
4. After the procedure stated in Art. 2 has been Certifi-
carried out with regard to certificates issued to owners to be filled
of the right to Tapu (5), the name of the deceased, j
the date of decease, and the relationship of the owner ited -
of the right to Tapu will be written by the side of the
printed sentence " right to Tapu," as shown in speci-
men 5, and the Tapu value estimated by unbiassed
possessors of knowledge will be written in the column
for equivalent value.
* 5. In cases of pure Mahlul property conferred b
auction, as shown in specimens 6 and 7, the manner in property to
which the property became Mahlul, that is to say, if
there is no owner of the right to Tapu, or, if there is
one and he abstains, will be written by the side of the
sentence " Pure Mahlul," and the price fixed at auction
will be written in the column for auction price. If it
is waste (Khali) land of a Yak^ and it is leased by
auction to the candidate, as in specimen 8, the price
1 fixed will be put in the column for auction price.
6. The name, address, profession, and name and Description
/ of ancestor
address of the father of the possessor of every kind of to be
Musakafat and Musteghillat, will be written in the gl
column for name of possessor.
7. The fees taken, as stated in detail in the Instruc-
154 The Ottoman Land Code.
\
Fees: tions (6), will be written in the fee column, as shown in
taktn* be specimens 1, 2, 3 and 4, and the rate per mille at which
they have been calculated will be noted in the place
entitled " Per Mille " to the left of the said column.
The three piastres taken for each title-deed will be
entered in the column printed " Cost of paper." The
one piastre taken for each will be written in the
column for " Clerk's Fee." If there is any uncollected
Ijare, or Mukata, it will be taken on account at the
time of alienation and inheritance, and will be written
in the Ijare column if it is Ijare, and in the Mukata
column if it is Mukata. In cases of Malilul only the
cost of paper and clerk's fee will be entered. The
total will be added up according to the system of
calculation shown in the specimens, and entered in the
column for " Total.' 7 Under the words " Eegistration
Number in the Receipts Register," to the left of the
total column, the number of the register sent to the
Treasury with these tabulated forms will be written.
Foot of 8. After the procedure stated above has been entirely
certifi - carried out, and the three copies of each certificate have
cate: how
to be filled been filled up in the manner explained, as shown in
the specimens, in the first of the empty spaces among
the lines at the foot of the tabulated form of certificate
to the right, the nature of the property, and if it is in
partnership, as in specimen 3, the number of shares
will be shown. In the second the name of the future
holder, and of his father, will be written. In the table
Instructions Regarding Certificates for. 155
to the left of the foot of the tabulated forms of certifi- Foot f
certifi-
cate that will be sent away and that \\ill remain ascate: how
i i -11 .to be filled
counterfoils, the details of the sums that will remain - m .
in the locality will be entered. Thus, in the Treasury
share of the fees of alienation, inheritance, mortgage
(Istiglal), and cancellation of mortgage (Istiglal), that
is to say, one-fifth of half the fees, will be separated and
entered in the column for " Mudir's fifth," in the small
table in which is written " fifth detained locally for
Mudir and others " in the second table of each specimen.
In accordance with the ancient system, the shares of
Mutevelis with Berats, Clerks, and Jabis, will be de-
livered to them, and, as shown in the specimens, each
one will be entered in its proper column. If it is
necessary that the Ijares and Mukatas taken at the
time of alienation, inheritance and mortgage (Istiglal)
should be detained and delivered locally, they will be
detained and entered in the columns for Ijare and
Mukata. The total will be added up in an arithmetical
system and entered in the column for total. The places
for date will be filled up, and the Mudirs will seal
under the places printed " Mudir of Evkaf." If it is a
Mulhaka Yakf, and the Muteveli is in the locality, the
Muteveli of the Vakf will seal under the places printed Seal of
" Muteveli of Vakf." A note will be made if the
Muteveli is not in the locality. In cases of Mahlul,
the shares of the servants detained locally will be
shown in the registers sent away ; no note will be
made in the tabulated forms of certificate.
156 The Ottoman Land Code.
Separation 9. After all the registration procedure stated above
tificates! " nas been carried out, the tabulated form of certificate
will be cut at the place to the right, that is to say,
where " to the Imperial Evkaf Ministry " is written at
the top, as shown in the specimens, and given to the
future owner. Then the second tabulated form of
certificate will be cut and attached to the old title-
deed of the property, if there is one ; if not, it will be
kept by itself. Except in cases of Mahlul, all the
tabulated forms of certificate collected during one
month, and the old title-deeds attached to them, will
Transmis- be sent, together with the Receipts Register with Maz-
tabukted bata a ^ ^^> direct to the Treasury. As one copy of
forms. fkjg R ece jpt s Register to be sent has been sent as a
specimen, it will be prepared as shown in this speci-
men. The certificates of Mahluls will be sent once
every three months, together with the Detailed (Muf-
redat) Register.
Third part 10. Tw/o tabulated forms of each certificate will be
of the cer- , . ,. . , .,, .
tificate to cut out m the manner stated, the third will remain in
kept ' the stump of counterfoils, and be kept locally for the
accounts to be seen in case of necessity, and to be
referred to. The predecessors of the Mudirs of Evkaf
will make a complete handing over to their successors.
If one counterfoil is missing at the time of handing
over, it will not be accepted, but reported to the
Imperial Treasury. If it is accepted without informing
the Treasury, the responsibility will lie with the person
Instructions Regarding Certificates for. 1 5 7
who accepts. They will also completely deliver the
specimens, instructions, descriptive instructions, and
of the* register.
25. Eamazan, 1281.
9. February, 1280.
158 The Ottoman Land Code.
X. COPY OF IMPERIAL KHAT (1) (2).
"LET BE DONE ACCORDINGLY.
With the intention of facilitating the procedure, and
commerce and agriculture, and in that way the rich-
ness and prosperity of the country, the following
Imperial permissions which have been decided on
concerning the mode of inheritance of Mirie and
Mevkufe land possessed by Tapu are made known.
Rules of 1. The provisions of the Imperial Land Law con-
to MM? 108 cerning the inheritance in equal shares by the children,
ma * e an( * * ema l e > f ^irie and Mevkufe (3) land pos-
sessed by Tapu, remain as they were, onlyjf the male
and female children of possessors of Mirie and Mevkuf6
land are not living, the land possessed by them shall
be inherited equally without cost by, 2, the grand-
children, that is to say, the son and daughter of the
male and female children ; 3, by the father and mother ;
4, by the brother german and consanguineous ; 5, by
the sister german and consanguineous ; 6, by the
brother uterine ; 7, by the sister uterine, and if there
Copy of Imperial KJut. 159
are none of the heirs enumerated it shall descend, 8,
from husband to wife, and from wife to husband (4).
12. While an heir of the first degree of the possessors Rules of
of the right to inheritance of the degrees mentioned ta nce.
above is living, an heir of the second degree shall not
have a right to inheritance ; for instance, the land shall
not be inherited by the grandchildren when there is a
child, or by the brothers and sisters german when
there are grandchildren existing ; but children of the
male and female children who die during the lifetime
of their father and mother, shall take the place of the
children : the share that would be inherited by their
i
father and mother from their grandfather and grand-
mother will be inherited by them, but of the land
that will be inherited by heirs being possessors of the
right to inheritance from the parents to the sister
uterine, a share of one-fourth each shall be inherited
by the husband and wife.
3. The system of mortgage (Feragh bil Yefa) (5) Mortgage.
which is in force for securing a debt, and the conditions
and procedure that will make the land of a debtor,
' which has not been mortgaged (Yefaen Feragh)
chargeable as to the debt during his lifetime, or, on
his death, will be fixed by special laws.
NOTE. The system of Mortgage (Feragh Ul Vefci) is stated in
Art. 26 of the Tapu Law. And the procedure to be carried out in
the lifetime and on the death of the debtor is stated in the Law
* No. 16.
160 The Ottoman Land Code.
*
Procedure 4. The Mine and Mevkufe land procedure will be
Chiftiiks. completely carried out with regard to Chiftliks and
other land which are possessed by Imperial Title
Deeds (Mulkname (6) Humayan), but the annual rent
(Muejele) which is taken from these in accordance
with the special rules shall be taken as before.
Buildings 5. The provisions of the Imperial Land Law con-
cerning the possession of buildings and trees on Mirie
and Mevkufe land shall be carried out as before (7).
Operation 6. This law shall be in force from the date of
promulgation, and the Imperial Land and Tapu Laws
being corrected in accordance with the legal provisions t
which are stated in the foregoing articles, shall be
published and notified (8).
17. Muharem, 1284.
XL FISCAL REGULATIONS RELATIVE
TO THE APPLICATION OF THE
PRECEDING LAW (1).
The right of succession to lands Mirie and Mev- increase of
kufe belonging to the domains of the State (Beit-ul-
,' Mai) was limited until now to the children and the
father and mother of the proprietor. With the inten-
tion of strengthening the right of possession of these
lands in the hands of the holders of them, the limit of
the right of inheritance of these lands has been enlarged
by virtue of the new law promulgated by Imperial
decree dated this day.
In consequence of the advantages which the owners
of these lands will gain by this concession, and as a
.compensation for the loss caused to the Treasury by
the suppression of the right of Mahlul, finally, in
return for the new right granted to the owners of
lands, it has been decided that the State will levy the
equivalent of a tithe and a half (15 per 100) from the
annual produce of the land. But, as the levying all at
once and the payment in cash might fall heavy on the
M
1 62 The Ottoman Land Code.
increased landholders, the amount of this tax shall be spread
payable, over five years, payable in kind from the annual pro-
duce, or in money, at the will of the owner of the
land. This spreading over five years will be made in
the following manner :
The first year (1283) the payment will be one-third
of the tithe and a half, that is, the half of the tithe
levied until now on the produce of lands Mirie and
Mevkufe ; for example, the landholder who pays now
one kiio as tithe, will pay besides this kilo half a
kilo.
The second year (1284) the payment will be the
quarter of the tithe, that is, the landholder who at
present pays a kilo as tithe, will pay over and abo\
this kilo a quarter of a kilo.
The third (1285), the fourth (1286), and fifth year
(1287), the payment will be a fourth as for the second
year ; at the expiration of the fifth year the landholder
will have to pay only the normal tithe.
New tax The tithe and a half to be levied, as it is said above,
Midland * n re ^ urn ^ or ^ ne new ri g n ^? will be leviable only from
Mevkufe. |j ie OW ners of lands Mine and Mevkufe ; whatever
may be the produce of the cultivated land, the levying c
the tithe and a half will be at the charge of the land-
holder, even in case the land should be let.
This taxation is confined to lands Mirie and
Mevkufe held by Tapu ; it will not be leviable on the
produce of olive trees, mulberry trees, vines, and other
fruit-bearing trees.
Fiscal Regulations. 163
A tax of !,"> per 1(M) will be levied, in live payments Like t
spread over live \ears. and under the same conditions " " '
and proportions as for cultivated lands, on the produce
and receipts from non-cnltivated lands, such as lands
for wintering (Kishlak) and pasture (Yaylak) held by
Tapu.
Lands held by Mulkname (Imperial decree) will be The
t rated in the same manner as other Mirie lands ; namVlan.
but other arrangements will be made concerning the
annual payments which weigh on the lands included
in the category of the Emlaki Humayun (2) (Koyal-Other
T L \ lands.
Property).
17. afnbarem, 1284.
21. May, 1867.
NOTE. This transitory law h'ts ceased to be in force on account
of the expiration of the term on the one hand, and on the other, on
account of an Imperial Decree which the Government has commu-
nicated in the newspapers.
M 2
1 64 The Ottoman Land Code.
XII. COPY OF IMPERIAL KHAT.
"LET BE DONE ACCORDINGLY."
Lauds Subject to the conditions which relate to conforming
called Mus- .,, , .., . . ,
akafat and with the illustrious pious foundations remaining per-
ghiffat manent, and not causing any injury to the origin and ;
conduct of the Musteghillat VakfM, and the conditions
of the Vakf being completely carried out as before,
the Imperial permissions which have been decided on
concerning the system of inheritance of Musakafat (1)
and Musteghillat (2) the possession and administra-
tion of which belong to His Imperial Majesty, the
Great Sultans and their Dependents and Mutevelis
being extinct, and the administration remaining with
the Imperial Evkaf Treasury, and which are possessed c
by Ijaretein (3) are made known as follows :
Rules of 1. Musakafat and Musteghillat Vakfs which are
ance. possessed in Ijaretein shall as before be inherited
equally by the male and female children ; if there are
no existing male and female children, they shall be
Inharitancc of Musakafat & Mustcgkillat. 165
inherited in equal shares by 2, the grandchildren, Rules of
that is. to say the children of the male and female
children; 3, by the parents; 4, by the brother and
sister german ; -~, by the brother and sister con-
sanguineous ; 6, by the brother and sister uterine ; 7,
from husband to wife and from wife to husband (4).
2. While there is an heir living who is a possessor
of the right to inheritance of the first degree men-
tioned above, an heir of the second degree shall not
have the right to inheritance ; for instance, while there
are children the grandchildren, and while there are
grandchildren the parents, do not inherit Musakafat
and Musteghillat Vakf, but the children of the male
and female children who die during the lifetime of
their father and mother take the place of children, and
the share that would be inherited by their father and
mother from their grandfather and grandmother will
be inherited by them ; but of the Musakafat and
Musteghillat that would be inherited by an heir being
one of the possessors of the right to inheritance from
the parents to the brother and sister uterine a share
'of one-quarter each shall be inherited by the husband
and wife. While there are children and grandchildren,
the husband and wife shall have no right to take a
share in Musakafat and Musteghillat.
3. As compensation for the losses from Mahluls which
the Evkaf will suffer on account of the extension of
1 66 The Ottoman Land Code.
,
Increase of inheritance, the Ijare Muejele of Musakafat and
Musteghillat w.ll be increased in a rational proportion
according to its value, and this proportion will be fixed
by special instruction (5).
4. Fees of thirty per cent, on the alienation and
fifteen per cent, on the inheritance by children of
Musakafat and Musteghillat Mevkufe will be taken as
before established, but the amount of inheritance fees
to be taken in accordance with their degree on the in-
heritance by heirs who are possessors of the right to
inheritance of the degrees mentioned above, other than
male and female children, will be fixed by a special .
law (6).
Mortgage. 5. The system of mortgage (Feragh bil Yefa) which
is in force for securing debt will be in force as before,
and the conditions and procedure which detail this
system will be fixed by special laws (7).
Law not 6- The possessors of the said Musakafat and Muste-
gfifofc are not obliged to conform to this law. Those
who desire to conform to its provisions can renew the
titles for Musakafat and Musteghillat Mevkufe which
they possess in Ijaietein, in accordance with the form
and system which will be fixed.
7. This Imperial permission is only applicable toy
Mazbuta Yakfs which are administered through the
Inheritance of Musakafat and Musteghillat. 1 6 7
liuin of tlu Imperial Evkaf Ministry, and to tli
illustrious Vakl's of Sultans and their 1 >.-{)-ii<lc],t-, the c hai
i and administration of which belong to His
Iinj)erial Majesty by trusteeship. It is not applicable
to other Vakl's. But the founders of other Vakfs who
are alive, and who can if they choose alter the condi-
tions of their Vakfies, will be permitted to act
according to this legal decree.
8. The procedure concerning Musakafat and Mnste- Applica-
ghillat of which the building site is Mukata (8) Vakf
and the building Mulk, shall be carried out in accor-
dance with its ancient system. On the purchase, sale,
1 alienation, and inheritance of this kind of Musakafat
and Musteghillat the ancient 3Iukata will be aug-
mented to a proper degree.
9. This law comes into force from the date of its Operation
, . of law.
promulgation.
NOTE. This law bears r,o d ite in the Destur, but in the Legisla-
tion f'ttomane it bears date 7. Safer, 1284, see also Arts. 3 and 5 of
Ko. 16.
1 68 The Ottoman Land Code.
XIII. ACQUISITION OF PROPERTY BY
FOREIGNERS (1).
In order to extend the riches and prosperity of the
Imperial Dominions, and to set aside the difficulties,
abuses, and all kinds of doubts which arise from foreign
subjects becoming possessors of property, and to put
this important matter under a firm law and to com-
plete the financial and administrative security, the law
which has been decided on by Imperial Irade is made
known as follows :
Extension 1. The subjects of foreign Governments are allowed
aliens. to take advantage of the rights to possess property
within or without towns in every part of the Imperial
Dominions, with the exception of the Hejaz, in the
same way as Ottoman subjects, and without being
under any other conditions, in the manner stated
below, on complying with the laws that govern them
in this case. Those who were originally Ottoman
subjects and afterwards changed their nationality are
Acquisition of Property by Foreigners. 169
excepted from this rule. Concerning them the
provisions of the sp-riul law will be in force.
: K. The procedure to be followed with regard to property
(Emhilc) ami im,d (Jnr:/) lJ"u<tnxj to persons excephd from this
in (i La a- -improved by Imperial Trade, dated
LT). I /,/>, 1300.
2. Foreigners who are owners of property within Legal posi-
. . . tion of
or without towns in accordance \vith the provisions of aliens as to
Art. 1, will be obliged to fulfil the conditions which P r P ert y-
Ottoman subjects are obliged to in all matters which
concern their property. In order to give legal effect
to this obligation: 1, he will comply with the laws
1 which are at present and may be in the future in force
concerning possession, inheritance, alienation, and mort-
gage (Istiglal) of property, and police and municipal ;
2, he will pay all taxes which Ottoman subjects
possessors of property are or may be assessed for, of
whatever name or form, within or without cities; 3,
they will have recourse to the Ottoman Tribunals in
all matters concerning property, and in the event of
an action affecting it, whether as plaintiff or defendant
or both sides foreign subjects, which will be tried
according to the system to which Ottoman subjects
possessors of property are subject, the conditions to
which they are obliged to conform, and the rights
which they have acquired, without the interference
.of the actual quality of their nationality special to
their persons, and having regard to the protection of
i 70 The Ottoman Land Code.
,
the exemptions which belong to their persons and
movable property in accordance with treaties.
Bank- 3. In the event of the bankruptcy of a foreigner
ruptcy of
alien. possessing property, the syndics will apply to the
Ottoman authorities and tribunals for the sale of the
property possessed by the bankrupt, which by essence
and law is permitted to be answerable for the debts of
the owner, and if a foreigner has an action against a
foreigner who is possessor of property for a matter
other than property, and has gained his action by the
decision of his Chancellerie, and the sale of the
property which is valid to pay the debt of the foreigner
who is condemned by this judgment is necessary, the /
matter will likewise be referred to the Ottoman
authorities and tribunals, who will first inquire whether
the property which the creditor claims to have sold is
of the class permitted by law to be sold to satisfy debt,
and afterwards carry out the decision.
Testamen- 4. A foreigner has the power to bequeath his property
ef7lien. Wei the inheritance and donation of which by will is per-
mitted ; the Ottoman laws concerning Metruke will be
carried out with regard to property which has not been
given or bequeathed, or which the provisions of the
Ottoman Laws do not allow to be giy n or bequeathed.
Succession NOTE. It lias been notified by Vezirial letter, dated 24. Julij,
to alien's 1291, that in the event of the death of a foreign subject possession
property. p r0 p er fy (Emlok} his property (Emlalc) and land (Arazi) will
inherited by his legal heirs.
Acquisition of Property by Foreigners. 171
,x
foreigner shall take advantage of the Operation
, . -, of law.
of the provisions of this law as soon as
a(.-([uiesc('uc'o has been given by the Government to
which he is subject to the mode prepared which is
proposal by the Ottoman Government to be carried
out concerning acquisition of property.
End of Jemazi ul evel, 1284.
172
The Ottoman Land Code.
XIV. INHERITANCE OF MUSAKAFAT
AND MDSTEGHILLAT.
Fiscal pro-
visions as
to Musa-
kafat and
Musteg-
hillat.
Yearly
tribute.
APPENDIX.
Law concerning the mode of execution of the pro-
visions contained in the law published by Imperial
Ii-ade* on the 17. Muharem, 1284 (1), concerning the
extension of inheritance of Musakafat and Muste-
ghillat found in Mazbuta Vakfs arid Yakfs of the
Sultans and their Dependents.
1. An annual ijare Muejele of forty paras per
thousand on the value that will be assessed by
possessors of knowledge on the present conditions of
Musakafat and Musteghillat Mevkufe of which the
rights of inheritance have been extended will be fixed,
and the ancient ijares of these will be abolished.
Yearly tax 2. The procedure stated in the last article will also
Gediks. be carried out in G-ediks, which are possessed in
ijaretein, but the annual ijaie Muejele will be fixed
after the value of the Mulk on which they are estab- ^
lished has been deducted from their estimated value.
Inheritance of Mnsakafat & Mustcghillat. i 73
3. The annual rent of the Mulk which is taken from Mode of
the ownt-rof the Gedik on Mnsakafat and Mnsteirhillat yeftrij
which are \\ithin the Yak is iixe.l by law, and on which rent -
ther - dik, will be reckoned at forty times the
value, an 1 an annual ijare Muejele of twenty paras per
thousand will be fixed on however many piastres it
amounts to : the amount of the old rent shall never be
augmented.
4. The amount in excess of the annual ijare, that Disposal of
will be newly fixed will be paid in the same way as the
old ijare of Musakatat and Musteghillat, in accordance
with the special rules for the old ijare Muejele.
5. When Musakafat and Musteghillat, the rights of Duties
i'ii succession.
inhernance ol which have been extended, is inherited,
an inheritance fee will be taken ot fifteen per thousand
as before when by the children, thirty per thousand
when by the grandchildren, forty per thousand when
by the parents, and fifty per thousand when by the
brothers and sisters, german, consanguineous, and
uterine, and by the husband and wife, and wh-n they
are definitely alienated as before, only thirty per Duty
thousand, and when they are mortga.ed (Istiglal),
cancelled, or released, fifteen per thousand fees will be mort g a s e
taken.
6. On the alienation, mortgage (Istiglal), and in-
heritance by the children only of the said Musakafat
Musteghillat of which the inheritance has been
174 The Ottoman Land Code.
Proportion extended, quarter of the fees that will be taken, as
s .. to cierk before, belong to the Clerk and Jabi of the Vakfs, and
anii Jabl> the remainder to the Treasury for the Vakfs. The
whole of the fees that will be taken on the inheritance
by heirs other than the children shall be paid to the
Treasury and entered as revenue of the Vakfs.
Duty of 7. It will be obligatory for an heir who has the right
of inheritance to cause the process of inheritance of
Musakafat and Musteghillat which will be inherited by
him to be carried out either by himself or by agent
within six months if it is in Constantinople, and
within one year if it is outside.
I
Appiica- 8. When the possessors of Musakafat and Mus-
law to teghillat which belong to various and mixed Vakfs
Vakfs w * s ^ ^ become subject to the new law, the site of
every Vakf will be measured and delimited, and
title-deeds in accordance with the new system will be
prepared for places which are within the Vakfs fixed
by the law. Whether the Vakfs of the Musakafat and
Musteghillat of this kind of numerous and mixed
Vakfs are all of the kind described by the law, or
whether some of them are of that kind and the others
Separate Meshruta Vakfs, separate ijares for each Vakf will be
fixed in accordance with whatever share of the value
that will be assessed on the present state of the said
Musakafat and Musteghillat falls to the share of each
Vakf.
Inheritance of Musakafat ^r Mnstcghillat. 175
I*. If one of the p. of Musak.ifat and I)ivisi " u "*'
Musteghiilat which is po><cs>rd in partnership or un- *'ui\> land.
divided wishes to make it subject to the new law, and
the other partners do not aeijuiesce, if it is possible to
separate the partners and divide this kind of Musakafat
and Musteghiilat the share of the willing partner
will be separated, and a title-deed in accordance with Xew title -
deed for
the new system will be prepared ; if it is not capable of severed
division in accordance with the provisions of the law, a p '
ne\v title-deed will be delivered for his commonly
known share.
10. It will be sufficient to collect whatever amount Amount of
, of the ijare Muejele falls to the value that will be re- *e of
assessed on only the building sites of the said Musaka-
iat and Musteghiilat which have been burnt or des-
troyed after the said ijare has been fixed in accordance
with the rules stated above. The amount which falls
to the share of the burnt or destroyed building will be
deducted.
11. If buildings are built on sites on which the fpcrease of
buddings have been burnt or destroyed, or which were erection of
originally free from buildings, after the ijare has been bl
fixed in accordance with the new rules on the site, the
present condition of these kinds will be newly estimated
and their ijares renewed and fixed at the rate of forty
f>aras per thousand piastres on their value, that will be
fixed approximately by possessors of knowledge.
176 The Ottoman Land Code.
Valuation 12. The amount of the special ijares of Musakafat
onVe'very an< ^ Musteghillat of which the ijares have been newly
five years. fi xe( j j n accordance with the rules for the e*xtension
of the rights of inheritance will not be increased or
diminished on account of the increase or decrease of
the value of the properties for five years from the date
of the preparation and delivery of the titles that will
be given in accordance with the new system, but once
in every five years the actual values of the said
Musakafat and Musteghillat will be examined, and the
ijares will be renewed and modified.
Marginal 13. Marginal notes will not be written henceforth on
notes on , -IT -ni i -11
deeds for- the title that will be given in accordance with the new t
en ' system ; in the event of alienation, inheritance, separa-
tion, and division, new title-deeds will be prepared and
delivered, and the old title-deeds taken and kept in
abroation.
2. Zilkade, 1285.
( i:
XV. LAVT CONCERNING CONDITIONS
FIXIXG THE SECUPJXG OF DEIiT
AFTER DEATH BY ARAZL MIRIK
AXD MEYKUFE. AXD MU.SAKAFAT
AND MUSTEGHILLAT YAKFIE (I).
PREFACE.
A? lias been promised in Arts, oof the Law concern- Eem-
ing the Extension of Inheritance of Musakafat and
Musteghillat Vakfs, and 3 of the Law Extending In-
heritance to Arazi, modifying the provisions of Art. J v
of the Tapu Law. the procedure that will be followed
during the lifetime of the debtor for debt to be paid
after his death from the value of the land which he
Jias mortgaged (Yefaen Feragh) for securing debt,
or of the 3Iusakafat and Mnsteghillat Mevkufe, of
which the right to inheritance has been extended,
been fixed bv tins law.
1. When a possessor of Arazi 3Iirie and Mevkule is
'going to mor "-fcten Feragh) the land which Ke
N
1 78 The Ottoman Land Code.
method of possesses by Tapu to his creditor, lie is obliged to act,
gaging. firstly, in accordance with the conditions which are
contained in Art. 26 of the Tapu La\v (2).
Mortgage 2. If a person mortgages (Vefaen Feragh) to his
parable creditor by meaus of the authority, in return for the
fi f debtor's debt, the Aruzi Miiie and Mevkufe which he possesses
movables, and dies before paying it, the said debt like other debts
shall be paid from the movable property of the debtor ;
if he has no movable property or his existing movable
property does not cover his debts, whether the debtor
has an heir having the right to inheritance, or there is
an owner of the right to Tapu (3) or not, a sufficient
quantity of that laud to cover the debt will be con-
ferred by auction on the candidate for its equivalent
\alue, and the said debt shall be paid.
- 3. The provisions of Art. 2 shall be carried out also
' in Musakatat and Musteghillat Mevkufe of which the
hystem of inheritance has been extended in accordance
with the law dated 13. Sefer, 128-i (4), and the Ijare
Muejele increased to the equivalent amount (ejri misl).
Mortgagee 4. If the value of the Arazi, Musakafat and Musteg-
m^rtgaged hillat mortgaged (Vefaen Feragh) is nut sufficient to
land. p av tne debt of the deceased debtor, the creditor
shall not be able to interfere with other Arazi, Musa-
kafat and Musteghillat in the possession of the debtor
Securing of Debt after Death. i 79
(
which has not been mortgaged (Vefaen Feragh) for
the arrears of his claim (5).
5. This law is an appendix to the laws dated Oper.uu
17. Muharem and 13 Sefer, 1284 (4), and will be in
force from the date of publication.
23. Kamazan, 1286.
x 2
i So The Ottoman Land Code.
XVI. LAW CONCERNING THE MORT-
GAGE (T.ERHIN) OF PROPERTY (1).
Method of 1. When a property is going to be mortgaged
gating. (Terhin), first, a certificate sealed by the Mukhtar and
Council of Elders of the quarter or village stating that
the property has no encumbrance such as being mort-
gaged (Terhin) to another place or under sequester,'
will be got and shown to the Mejlis Temyiz if at the
head quarters of a Liva, and to the Mejlis Daavi if in
a Kaza, and after the title-deeds of the property have
been examined without delay by the Mejlis, and it
has been verified that there is no kind of encum-
brance, the certificate will be kept and a permission
will be given; the permission will be shown to the
Mehkeine Sheri of the Kaza in which the property is
situate, and it will be necessary to get a moitgage'
(Kehn) hujet from there.
Register of 2. A register will be kept by the Daavi and Temyiz
Mejlises for mortgage (Terhin) proceedings, and
directly the permission has been given for a property
to be mortgaged (Terhin) it will be entered in that
Law Concerning Mortgage of Property. 181
iter. The record will be amcndi-d on application
to the said Mrjlises at the time when the cancellation
of tin- mortgage (Rehn) takes pi .
3. No fees will be taken by the Councils of Elders,
Temyiz and Daavi, when carrying out these proceed-
ings. Only the fees for Hujet will be taken by the
Mehkeme Sheri. x
Date of Imperial Irade
21.Eebiulakhir, 1287.
8. July, 1286.
1 82 The Ottoman Land Code.
XVII. LAND LAW, 1274.
SUPPLEMENTAEY ARTICLE.
V
Grant of The privilege of receiving gratis five donums of
military. ^he ^ anc ^ to w hich the right to Tapu is possessed,
is granted to officers of the Regular Army (Asaker
Nizamie) whether retired or not, and to retired privates
of the same branch. Two and a half donums each of
the land of which the right to Tapu falls to them, will
be granted gratis (Bila Bedel) to all soldiers who
have passed the requisite number of seven years as a
soldier and entered the category of Redif, whether
they have actually served as a Redif or not.
Persons paying the equivalent to service in the
Regular Army are not entitled to this privilege.
25. Muharem, 1287.
XVIII. INSTRUCTIONS CONCERNING
TAPU AFFAIRS (1).
1. Until the land registration is complete there will Land
be in each Sanjak one land official, and two or, in ca*e of ol
necessity, three clerks, and in each Kaza one Tapu clerk.
As a centre to all these there will be at the centre of
the Yilayet one official with the title of Defter Khane
Khakani Mudir and an assis f ant. Under the direction
of the Mudir there will be an office with seven clerks,
one for each Sanjak. The Kaza clerks will have recourse
to the land official at the capital of the Sanjak, who
will have recourse to the Tapu Administration at the
centre of the Yilayet. All responsibility to the comp-
trollership of the Defter Khane Khakani will rest with
this Administration.
2. Though the procedure regarding land will be
earried out in accordance with the provisions of the
Imperial Land Law published on 7. Hamazan, 1271 (: ; -),
and the system and rules pertaining to the office
and registration will be supervised and carried out in
accordance with the provisions of the law and instruc-
tions published on the 8. Jemazi ul akhir, 1275 (3), and
15. Shaban, 1276 (4) (5), the explanation of some
184 The Ottoman Land Code.
Explana- matters is necessary in consequence of the new system
tion ot new
system. of Vilayets.
Tapu title- Land for which Tapu title-deeds will be issued, and
of which the issue is necessary, is divided into different
classes.
First divi- The first is title-deeds that will be issued for aliena-
tion and inheritance (6), the procedure necessary con-
cerning these *<ds specifically contained in the laws,
instructions, and Imperial Orders in this respect, the
provisions of which will be carried out (7) (8) (9).
Second The second is, that according to the provisions of the
law the title-deeds of persons who possess land under
title-deeds issued by Multezims and Muhasils under the
old system will be changed on their accuracy being *
ascertained, and new Tapu title-deeds will be issued to
persons who have no title-deed, but who have estab-
lished their prescriptive right on account of having
cultivated the land for ten years (10).
Proof of Though this will be done, in some places title-deeds
t?ve C right. are produced with unknown and false seals purporting
to be those of Multezims and Muhasils, and persons are
being confirmed in the possession of land merely by
claiming that it has been in their possession for ten
years. As it is stipulated in the law that, in order to
prove the accuracy of these title-deeds and to establish
the prescriptive right, a person should cultivate the
land for ten years successively, care must be taken to
inquire into this, as otherwise the prescriptive right
will not be acquired by a person who has not cultivated
Instructions Concerning Tapu Affairs. 185
_
the land, or lias only cultivated it once or twice, even
though he may have possessed it tor more than ten years.
Tlii' third are 3I"vat hind-, woods, and Jilul Mubah Third divi-
that are not required by the Government, with the '
exception of those that will be granted to immigrants
(11), woods that have be6n assigned to the inhabitants
of a town or village for collecting firewood (12), and
woods and forests that have been granted to a Chiftlik
owner or attached to a Vakf. The granting of these
according to the rules stated below is the duty of the
land officials.
And as it has been found that difficulties arise by inspection
, * ofbound-
tne registration on the simple statement of the bound- aries.
aries of land (as has been tried in some places), all the
lands of the Kazas in each Sanjak will be verified,
village by village, and, with the exception of those
for which Seneds according to system, rule, and reality
are shown, they will be registered, and in whichever of
the three categories mentioned above they are included,
the requirements according to the system decided on
concerning that category will be carried out.
3. Notice will be given to the Mejlis Idare of the Notice as
Kaza (13) in which woods on Me vat land which, as
stated in the preceding article, should be sold, and land '
land not belonging to anybody, or in excess of
Meras, which should be granted, are situate. In
accordance with this decision, these lands, woods, and
forests will be divided into several classes, and prices
1 86 The Ottoman Land Code.
Disposal of according to their estimation, locality, and surround-
forests on i"gs will be fixed, and the matter will be notified to
land** persons who have need and are candidates for Ihe land
and woods. After the price, piece by piece, according
to the number of donums, has been fixed at auction in
the Kaza Mejlis, the transfer is to be carried out. A
separate Bedel Ushr at the rate of ten or twenty paras
per annum pe" donum will be fixed according to its
locality and estimation, and the amount is to be noted
in the title-deed issued. Though permission is given,
Thickets, and new title-deeds are issued for certain thickets which
cannot become forests, or are in excess of requirements,
to be newly opened up into arable land, in places where
forests are scarce, or are of greater necessity, in order ^
that the thickets may take the form of a forest, per-
mission will not be given for them to be made into
arable land. But as it has been decided to confer for
a low price these thickets as woods on candidates who
engage to protect and allow them to grow, the inquiries
in this respect should be carried out with great care.
And as it is also very necessary to distinguish which
of these thickets should be protected by Government,
as will be ascertained by the requirements, size, and
importance of the locality, in case of hesitation and
doubt the matter should be reported to, and instructions
sought from, head-quarters. It is the duty of the said
officials to give attention to these matters also.
4. As the Yoklama one by one of the lands of the'
Instructions Concerning Tapu Affairs. 187
in each Kaza, as stated above, and the bring- Personal
ing to light of lands which should be granted, sold, by Tapu
and for* which title-deeds should be issued depends 01
on the Ka/a Tapu Clerks personally visiting the
villages and making inquiries, the Tapu Clerks in tin*
Kazas will go to th^ villages, whether the ivgistiation
has been made before or not, assemble the Ikhtiar
Mejlis, in their presence refer to eacrf'person's Tapu
Sened, if possible compare the land with the title-deed ;
point out the concealed and Mahlul land and those to
whom new title-deeds should be issued on verification
of their possession in accordance with the law, and if
there are any lands or woods which should be sold,
bring to light their true extent. The adjudication of Choice of
the woods, lands, &c., to be sold by auction in accord- to be 'sold'
ance with the last article should take place in the by anction '
Kaza Mejlis Idare, and if big, that is to say more than
several hundred donums and their price great in
accordance therewith, in the Liva (14) Mejlis. In
both cases the result of the auction should be con-
firmed by a Mazbata. The assessment of the equiva-
lent value (Bedel Misl) of land conferred on possessors of Valuation,
the right to Tapu (15) should also be made in the Kaza
or Liva Mejlis. Matters which Tapu Clerks will carry
out in the villages are verification of simple inheritance, Duties of
prescriptive right (Hak Karar) and renewal of old title- clerks,
deeds. They will verify and fix by the evidence and
information of the Ikhtiar Mejlis and other possessors of
knowledge in the village the circumstances, quantities,
The Ottoman Land Code.
_^
Duties of and boundaries of arable lands, meadows, woods, &c.,
clerks. of which the simple inheritance or prescriptive right
has been legally proved by being cultivated by a
person for more than ten years, or of which the re-
newal of the old titles is sought. They will fill in the
tabulated form according to law ; notify to the owner
the customary fees, cost of paper, and clerk's fee, and
after having entered them in a tabulated register kept
for each, on completion they will read aloud to the
Ikhtiar Mejlis the boundaries, extent, fees, clerk's fee,
&c., of each person's land and cause the end to be
sealed. They will make a list in the " chain " system
showing the number of piastres to be collected from
each person for fees, clerk's fee, and cost of paper, the *
name of the alienee, and the amount of money, and
leave it with the Mukhtar for collection.
Tapu clerk 5. When the Tapu clerk has made such a register of
certifi- UP a village and entered all its lands and caused those
about which a decision has been given in the village
to be confirmed by the Council of the Elders, before
commencing another village he will fill up the counter-
foils of certificates. The bottom of these certificates
will first be sealed by the Tapu clerk, and according to
the importance and necessity of the collection of the
money of which the collection through the village
Mukhtar has been decided, one of the Kaza collectors
serving in that division will be sent, and as the money
is collected and received it will be delivered to tho
Instructions Concerning Tapu Affairs. 189
>
Treasurer with the certificates. After the examination Appropria-
tion of
and comparison has been carried out there, and the fees.
i 1
clerk's fee belonging to the Tapu clerk has been
at- d, the balance will be entered as revenue to
the Treasury, upon which the certificates and counter-
foils in which this money has been previously entered
will be sealed by the Treasurer and Kaza Mudir, and
the certificates delivered to their owners through the
Mukhtars. A Mazbata showing the amount received
during the month, together- with the counterfoils, will
be sent every month to the capital of the Sanjak.
Equivalent value matters which cannot be decided in
the village and woods and other lands which should be
1 sold by auction if they are of the degree which can be
decided in the Kaza Mejlis, villagers and candidates
from outside and other persons having necessity will be
summoned to the capital of the Kaza at a fixed time on
the Mejlis carrying out the necessary proceedings in
accordance with the rules. In accordance with the
Mazbata that will be taken, the certificates and
necessary proceedings will be carried out in accord-
ance with the system that is stated above.
6. The Tapu clerk will thus occupy himself in Report by
,, , . . . . . , .,, nil . Tapu clerk
personally making inquiries in the villages, filling U p ^head-
certificates and counterfoils, and examining land that qua
will be conferred by auction and given for its equiva-
lent value, and at the end of the month he will inform
the Tapu official at the capital of the Liva how many
190 The Ottoman Land Code.
~~~~<
Report by certificates have been issued every month in a Kaza,
lapu si -. k ow ra uch the fees and cost of paper amount to, and the
month in which they have been brought to account
as revenue in the cash book of the Kaza. In order
that the Kaza Tapu clerks may carry out all these
duties in a proper manner and be expeditious and
dexterous in registration, they must employ the
necessary number of assistants and clerks until the
Assistants, work of registration is finished. These as.-istants and
clerks will be paid pro rata, or by the job, out of the
forty paras which belong to the Tapu clerks.
Duties of 7. Though the fundamental duties of the Land
cfpilaUf* officials at the capital of the Sanjaks are-
Sanjak. r fo pay attention to the constant movements and
proceedings of the Kaza land clerks and to compare
the registration work with the law, and to bring
about its execution expeditiously ;
To search for the Mahlul and concealed land and
to bring it to light, and to see personally, if
necessary, the Arazi Me vat, forests and woods to be
sold anew, to put them to auction, and to search for
their real value ;
In the event of mistakes being made by the Kaza
Tapu clerks, or if any of them appear unfit, to report
at once to the Mejlis Idaie of the Liva, and to do
what is necessary ;
To keep a tabulated summary register for each
Kaza at the capital of the Sanjak, to examine the
Instructions Concerning Tapu Affairs. 191
counterfoil certificates coming from the Kazas,
have them entered in the Summary Register by the
clerks under them, and to send them to the capital of
the Vilayet immediately ; to get counterfoil certifi-
cates from the capital and send them to Kazas where
they are required ; if there is any money outstanding
on account of fees, cost of paper, and clerk's fee col-
lectible according to the registration to write to the
Kaza Mudirs to collect it at once and not to allow
any arrears ;
To confer with the Sanjak Mutessarif in all cases,
to ask him in case of difficulty, and to ask for the
authorisation of the Central Administration for the
things required according to the work;
As the degrees of such states and the execution
according to desire is according to the intellect of
the official, the system stated above will be taken
as a basis of duty : the adoption and execution of
whatever further degree of care is necessary for the
attainment of the object in accordance with this
basis will be a cause of praise concerning the
officials.
8. It being under consideration to transfer to the Affairs
Tapu officials and clerks the execution of the necessary
office and registration work concerning land belonging
to Vakfs, and the issue of title-deeds special to them
when it is decided, details and conditions will be given
in separate instructions (16). Though it is not necessary
192 The Ottoman Land Code.
Different to do anything with regard to the Evkaf land now, as
land to be the officials will be held responsible if they give
guished. Arazi Mirie certificates for places belonging to Vakfs
and carry out the Evkaf procedure for Erazi Mirie, and
as the kind and condition of each is stated in the
Summary .Register kept by the Tapu official, care must
be taken to distinguish these in the registration now
carried out.
staff of 9. The Tapu office at the capital of the Vilayet
Office. under the management of the assistant Mudir will be
composed of seven clerks, each assigned to one
Sanjak and one Eegistrar of Papers ; the whole will
be under the supervision and responsibility of the
Mudir. When the Sanjak officials are chosen and
appointed the Registrar necessary at the capital will
also be chosen and appointed. On application for
authority from the Vilayet other clerks besides these
will be employed in future when it is considered
necessary to fill in and compare the permanent Tapu
title-deeds with the Imperial cypher in accordance
with the counterfoils received from each Sanjak. The
clerks of each Sanjak will first examine whether there
is anything contrary to law and rule among the title-
deeds received, after the Tughra title-deeds in accord-
ance with them have been filled in and compared, the
number of papers in a set, the number of the set, the
name of the alienee and the total of all will be filled in .
the columns of a separate printed journal, and after the
Instructions Concerning Tapu Affairs. 193
foot has been sealed by tin* Defter Kliakani Mudir of
the Vilayet, together with the title-deeds and Ma/batas
will be 'sent with a despatch from the Vilayet to the
Defter Khane Khakani.
10. The salaries of the Mudir, Assistant, Clerks and Salaries <>\
Kegisirars of the Tapu Office at the Capital of the fficials '
Vilayet, and the Tapu Officials and* Clerks at the
Capitals of Sanjaks will be paid by half the three
piastres cost of paper of certificates issued under the
new system, and from the known sum which, by
Imperial decree, is ordered to be detained as a set-off
or those who are permanently employed in the
Vilayet, whose salaries are paid by the Treasury, and as
he other half of the cost of the Tapu paper will be sent
is before to the Defter Khane Khakani, there will be
:n administration safe under the supervision of the
)efter Khakani Mudir and his assistant, and under
the care and management of the Guaranteed Registrar
of Papers at the Centre, and a journal of the revenue
and expenditure, and two separate books showing the
nature and details of the collections into and payments
out of this safe \\ill be kept. Consequently the three
piastres cost of paper paid to the Treasury by means
of the Tapu clerks in the Kazas and sent from there
to the Treasury at the capital of the Liva will be taken
by the Tapu officials on giving a receipt to the Treasury,
and the sixty paras of this belonging to the Defter
^ Khane Khakani being separated after the salaries of
o
194 The Ottoman Land Code.
Salaries of the Tapu official and clerks at the capital of the Liva
have been paid against receipt from the other sixty
paras, the balance will be sent to the central Tapu
office, and the half of the cost of paper will be sent as
usual from the place of origin direct to the Defter
Khane Khakani. After the salaries of the local officials
have been paid from half the cost of paper received
in the Livas, as the balance, will be paid into the said
safe after the sums decided to be paid to the Printing
Office at the fixed rate as cost of printed paper at the
Centre have been paid by Sened to the Printing Ad-
ministration, and the salaries of the Mudir, Assistant,
and Clerks have been paid from this revenue, also, the
balance, in short the surplus after the approved -
salaries and expenses have been paid, will be detained
as a set-off against the expenses of future months.
If the monthly receipts from half the cost of paper at
the capital of the Liva are not sufficient for the
salaries of the officials, as it will be necessary that
the balance should be paid from receipts of future
months, and that this system and rule should be
observed at the centre also, and at the end of the year :
(a) by taking a general account of the Tapu Adminis-
tration safe; (I) by paying any unpaid expense, if
found, on account of the Liva Memours' salaries and
expenses which have not been paid, also from the
surplus revenue, if any, after the salaries and expenses
paid up to the end of the year, whether from the
revenue arising from half the cost of paper or whether
Instructions Concerning Tapu Affairs. 195
%
taken from the Treasury as old assignments and salaries Disposal of
have been deducted ; (c) by delivering the surplus to revenue.
the Central Treasury and entering it as revenue for
the Imperial Treasury, it will not be permitted to
transfer the revenue of one year to another year, and,
at the end of the year, if the surplus revenue, after
deducting expenses, does not completely^ cover all the
unpaid salaries and expenses by dividing and paying it
in proportion to the amount of the unpaid salaries, the
account of that year will be closed.
11. The title-deeds sent to the Defter Khane Registra-
Khakani will be registered and sealed there also after seaHng of
if they have been examined, and the sealed journal being tx eds-
kept as a receipt until the arrival of the certificates
that are subsequently collected and sent, the Tapu
title-deeds will be returned to the Centre of the
Vilayet exactly as they are in sets, and if there are any
among them contrary to law and system their require-
ments will be explained or corrected, and they will be
sent together also. After a note has been made against
the entry they will be sent from the Centre to the
Capitals of the Livas.
12. The sealed title-deeds returned from the Centre
to the Capital of the Liva will be sent at once to the
connected Kaza after having been noted in the * the
Kaza.
tabulated register in accordance with the old rule, and
t>n immediate gratuitous delivery by the land clerk of
o 2
196 The Ottoman Land Code.
*
the Kaza to their owners, the counterfoil certificate
previously issued will be taken and sent to the Capital
of the Liva.
status of 13. The Arazi Memours and Kaza Tapu clerks will
be considered as members of the Meilis Idare of the
Memours >
Hud Kaza Liva and Kaza in which they are stationed when
derks. matters affecting land are being discussed. The
Mazbata drawn up at the end of the proceedings after
discussion will be sealed by them together with the
other members.
Travelling 14. When the Mudir of the Defter Khane Khakaui
ses * or his assistant proceed to a place to make inquiries
as before, they will be entitled to receive horse hire
according to distance for three horses. The Sanjak
Arazi Memours will be entitled to the hire of two
horses for proceeding to places within the Sanjak.
These sums will also be paid from half the cost of
paper. The distance going and coming of the place
visited each time will be calculated according to the
Mazbata of the Mejlis. In accordance with the rule
in force concerning all officials the Tapu officials must
pay for all requirements and necessaries in the places
which they visit. Any infringement of this rule will
be a cause of offence and responsibility (17).
Apportion- 15. A fixed portion for stationery will be assigned
Tsfof f r each Central Tapu Office and Land Office in the
paper. ganjaks ; a fixed sum will also be assigned annually
Instructions Concerning Tapu Affairs. 197
for each Centre as cost of fuel and divers expenses ; office ex-
an officy-keeper will also be appointed to the Central peu
Tapu Office. These expenses will also be paid from
the half of the cost of the paper. In short, from
March, 1282, nothing will be issued from the Govern-
ment treasuries as salary and other expenses of the
Tapu officials. The degrees and actions ,of the officials
are, for the present, described in these Instructions.
Official notification will be sent from the Centre of
the Vilayet of any modification made in consequence
of the experience gained by practice.
198 The Ottoman Land Code.
XIX. LAW CONCERNING THE PROCE-
DURE OF YAKFS MUSAKAFAT AND
MUSTEGHILLAT.
CHAPTEK I.
CONCERNING THE DIFFERENT KINDS OF VAKFS
AND RIGHTS OF POSSESSION.
1. Yakfs in the Ottoman Dominions are of two
classes :
i. Mazbuta Vakfs
ii. Non-Mazbuta Vakfs.
Definition Mazbuta Vakfs are Vakfs of which the appointment
Vakfs. of trustees and management, or if the appointment of
trustees is under the charge of the beneficiary, only
the management is subject to, and all affairs are
administered directly by, the Imperial Evkaf Treasury.
Non-Mazbuta Vakfs are Vakfs which are administered
by the Trustees (Mutevelis) under the supervision and
with the knowledge of the Imperial Evkaf Treasury.
2. Musakafat are places on which there are buildings,
, Procedure of Vakfs. 199
i
and which are prepared, and special, for the erection of Definitions.
buildings. Musteghillat are lands from which a profit
is derived by means of possession, such as agriculture
and planting of trees.
Gediks (appurtenances) are equivalent to Musakafat.
3. The possessory procedure according to the dif- Procedure.
erent kinds of land belonging to Yafcfs is subject to
the provisions of Art. 4 of the Imperial Land Law.
4. One class of Musakafat is alienated and taken in
Ijaretein. The other class is possessed by the Vakf a \ e ieil ^i e
by way of Ijare Yahide. When Musakafat held in in jare ~
Ijaretein is handed over by the Yakf^ a Muajele equal
to its true value and a fixed annual Muejele will be
pa"id to the Yakf. It can also be alienated and in-
herited (1). Ijare Yahide Musakafat and Musteghillat
are let by the Yakf for a fixed period, and cannot be Non-alien-
alienated and inherited ; this law does not apply to
them.
5. The Musakafat and Musteghillat of Mazbuta Descent of
Yakfs held in Ijaretein are inherited by the children, vakfe.
grandchildren, parents, brothers and sisters, german,
consanguineous, and uterine, husband and wife. The
Musakafat and Musteghillat of Non-Mazbuta Yakfs held
in Ijaretein is inherited by the children only. The
rules with regard to the inheritance of Mazbuta Yakfs
are fixed by a special law (2).
2OO The Ottoman Land Code. ,
: I
Disposal on 6. If there are no persons having the right of
heirs. inheritance to the Musakafat and Mustegl^illat of
Mazbuta and Non-Mazbuta Yakfs as stated in Art. 5,
they will be taken by the Yakfs (3) as Mahlul and
leased by auction. The auction and lease of Mahluls
will be carried out in accordance with the provisions
of a special lajv (4).
CHAPTEE II.
CONCERNING THE FORMATION OF THE ADMINISTRATION
OF TITLE-DEEDS AND THE MODE TO BE ADOPTED
IN KEEPING THE REGISTERS.
7. The Imperial Evkaf Title-Deeds Administration Title-deeds,
is divided into two branches, called the Musakafat and tration!"
Gediks Offices, under one Mudir, who shall also have
assistants.
8. There will be a sufficient number of inspectors, staff.
valuers, and assistant inspectors in the Musakafat and
Gediks Offices, and engineers will be employed as
required. The procedure necessary with regard to the
duties of these officers, the number of clerks and super-
numeraries employed, and their promotion, will be
stated in special instructions.
9. The requisite number of Jabis and a Treasurer Jabis and
who has given security will be employed. One of the T]
Jabis will be head of the others. The duties of these
officers will be fixed by special instructions.
t
10. A separate register of the Musakafat and
2O2 The Ottoman Land Code.
Separate Musteghillat of each Mazbuta and Non -Mazbuta Vakf
in Constantinople and the three cities will be kept by
and under the supervision of the Title-Deeds Adminis-
tration.
ciassifica- 11. The registers of the Title-Deeds Administration
registers, will be divided into four classes :
CLASS 1. 3aremem Yakfs.
CLASS 2. Vakfs of the Sultans and their Depend-
ents.
CLASS 3. Mazbuta Vakfs other than the above.
CLASS 4. Non-Mazbuta Vakfs.
Prepara- 12. All these registers will be prepared in one shape*
rasters. an( l s i ze - The mode of preparation will be defined in
special instructions.
Seal. 13. A seal bearing the sentence " Correct Entry " will
be made and affixed under each registration.
Duties of 14. All registrations will be made by the clerks of
clerks ' the Title-Deeds Office.
( 203 )
CHAPTER III.
CONCERNING THE SYSTEM OF AIJENATION
AND INHERITANCE.
15. Musakafat and Musteghillat Vakfie held in
Ijaretein can be alienated definitely or by mortgage
(Yefaen Feragh). It also descends by inheritance, in
accordance with the system stated in Art. 5. The way
in which alienation, definite and by mortgage (Feragh
bil Vefa), should be carried out is stated in this chapter :
it is forbidden to execute it in any other way (5).
16. The conditions and procedure to enable Musa- Debt. .
kafat and Musteghillat Vakfie to satisfy debt during
the lifetime or after the death of the debtor are defined
in special laws (6).
17. The alienation, definite or by mortgage (Vefaen purchases
Feragh), and the inheritance of Musakafat and Muste-
ghillat and Gediks of all Mazbuta and Xon-Mazbuta
Vakfs in Constantinople and the three cities must be
carried out in the Title-Deeds Office. The depositions
of the alienor and alienee or their agents and the
Mutevelis of Non-Mazbuta Vakfs will be taken in their
2O4 The Ottoman Land Code.
_ ^
Purchases presence by the Mudir of Title-Deeds or his assistants.
gages. By special permission in writing from the Evkaf
Ministry the Mudirs of Title-Deeds and their assistants
may take depositions outside their office. If the Mute-
velis of Non-Mazbuta Vakfs or their agents are not
present at the alienation, the depositions may be taken
by the Title-Deeds Office, and subsequently communi-
cated to the Matevelis and their sanction obtained.
Exempted 18. Only the alienation, inheritance, and issue of
title-deeds for Musakafat and Musteghillat of exempted
Non-Mazbuta Vakfs will be carried out at the Imperial
Evkaf Treasury in accordance with the law. The
advantages and receipts will belong to the bene-
ficiaries.
Proof of 19. When Musakafat and Musteghillat of Mazbuta
descent. an d Non-Mazbuta Vakfs is inherited in accordance with
Art. 5, the persons having the right to inheritance or
their agents, and if the former are minors their rela-
tions or guardians, must prove their existence to the
Mudir of Title-Deeds or his assistants and show the
title-deeds in their possession.
Duties of 20. When a person wishes to alienate definitely or
mortgagor, by mortgage (Vefaen Feragh), Musakafat and Muste-
ghillat Vakfie, the alienor must show his title-deed
and have it compared with the Vakf register to prove ,
the truth of his possession. If he has lost his title-
Procedure of Vakfs. 205
deed, in accordance with Art. 31, his deposition will be
taken in order that a new title-deed may be issued, but
only the formalities will be carried out: the preparation
of the title-deed issued to losers is stopped.
21. After the truth of the possession of the alienor Valuation,
has been proved, in case of necessity the value of the
building, building site, or land to be alienated will be
estimated by a valuer.
22. The following fees will be taken :
50% on the value of Musakafat and Musteghillat Duties.
and Gediks alienated, 25%o on their inheritance by
children, 10% on the amount of the debt on their
mortgage (Vefaen Feragh), 10% on the amount of the
debt on cancellation of mortgage (Feragh bil Vefa),
5U% on the alienation and inheritance of land, 40% on
the inheritance by grandchildren of Musakafat and
Musteghillat belonging to Mazbuta Vakfs, 50%o on the
inheritance by parents, 60%o on the inheritance by
brothers and sisters, german, consanguineous, and
uterine, and husband and wife.
23. The taking of more or less than these fees and Remission
their postponement is not allowed, but of the fees that dutiet r
will be paid by poor and necessitous persons, the Evkaf
Ministry is permitted to forego at most 250 piastres of
the shares which belong to thesEvkaf Treasury.
t
24. Any expenses, such as horse and boat hire, and
2o6 The Ottoman Land Code.
i
<
Cost of fare by steamers going and coming, incurred by
valuers and engineers in inspecting Musakafat and
other properties in places distant, or beyond the seas,
will be calculated according to the distance of the
place and time occupied, and deducted and paid from
the fees payable on alienation, definite or by mortgage
(Vefaen Feragh), and inheritance of Musakafat and
Musteghillat. -
207
CHAPTER IV.
CONCERNING THE MODE OF PREPARATION OF
TITLE-DEEDS OF VAKFS.
25. The title-deeds of Vakfs are of two kinds : Title-deeds
1. Are for Musakafat and Musteghillat of Mazbuta
Vakfs ; these, which are found at the Evkaf Ministry,
will be sealed with its original seal. 2. Belong to
*Musakafat and Musteghillat of Non-Mazbuta Vakfs;
these, after having been sealed by the Mutevelis, will
be sealed with the seal of the Ministry and issued.
26. From the date of the promulgation and execu- Form and
tion of this law, the title-deeds of Vakfs will be title-deeds,
written on the official printed paper specially prepared.
In all kinds of buildings and building sites, alienated
and received, the number, boundaries, form, value, area
(ziras) if possible, names of the Vakf to which it
belongs, alienor, alienee, and whether the alienation is
definite, will be noted and explained in the form at the
top of the title-deeds. These formalities will also be
carried out in cases of inheritance. As soon as a
definite alienation and inheritance is carried out these
title-deeds will be renewed. For mortgage (Feragh
208 The Ottoman Land Code.
-
Method of bil Yefa) a temporary title-deed will be issued to the
executing
mortgage, mortgagee, a note will be made at the back of the
original title-deed in the hands of the mortgagor that it
has been mortgaged (Feragh bil Vefa), and a note will
be made against the registration. On cancellation of
mortgage (Feragh bil Vefa) a note will be made on
the original title-deed, and the temporary title-deed in
the hands of the mortgagee will be taken and annulled.
Temporary 27. As stated in Art. 29, when alienation and
ate< inheritance take place, until the preparation and
issue of the official title-deed in accordance with Art.
28, a temporary certificate will be issued to the alienee.
Receipt of 28. .When the alienation and inheritance of Musa-
ti"le-deeds.' kafat and Musteghillat is being carried out, the title-
deeds in the hands of the alienor will be taken and
kept, and a temporary counterfoil certificate, sealed by
the Title-Deeds Administration, showing the date when
the alienation was carried out, the Vakf of the thing
alienated, and the number of the property, its kind,
Certificate, price, value, and the names of the alienor and alienee,
will be issued to the alienee. And the nationality of
the alienor and alienee will be shown at the top of the
registration in the Vakf Register.
Compari- 29. The title-deed .taken from the alienor will be
deed with 6 " compared with the registration in the Register of the
register, y^f to wn i cn the Musakafat and Musteghillat belongs.
Procedure of Vakfs. 209
\
The mode of alienation and inheritance, and date on
which it was carried out, will be registered.
i
30. If a Musakafat and Musteghillat is composed of Separ
numerous Yak is, separate title-deeds showing the area tith "
for each
(zirns) and boundaries will be prepared, but a tabulated Vakf.
certificate showing the numbers, and a summary
description of the place contained ia each, will be
issued to the owner, and in case of alienation and
inheritance it is absolutely necessary that this
certificate should be shown to the Title-Deeds
Administration.
j 31. If a Muteveli is missing or without reason Sealin b
neglects to seal a title-deed by a certificate from the Mudir -
Mehkeine Teftish (7) the Mudir of Title-Deeds will be
appointed substitute, seal the said title-deed, and issue
it to its owner. Nobody but the Mudir shall have
power to seal a title-deed as substitute.
32. The title-deeds of owners who have lost their Renevval ot
title-deeds and tabulated certificates will be renewed lost title -
after the truth of the possession has been ascertained
from the registers, and, in case of doubt arising from
the registers, after the matter has been inquired into
and judgment given by the Mehkeme Teftish.
2io The Ottoman Land Code.
CHAPTER V.
CONCERNING COLLECTING (jABl) AND CLERICAL SERVICES.
Collectors 33. The collecting work of Mazbuta Vakfs will be
3> done by paid collectors, and the clerical work of
Mazbuta and Non-Mazbuta Vakfs will be done by
clerks employed in the Title-Deeds Office.
i
Salaries 34. After the date of the promulgation of this law,
sions PeD possessors of collectorships and clerkships of Mazbuta
Vakfs, and clerkships of Non-Mazbuta Vakfs who are
honest and capable will be salaried and employed
under the Title-Deeds Administration. The others
will be retired with the balance of the fixed revenue
belonging to them, at the rate of 30% on the definite
alienation and 15%o on the mortgage (Feragh bil Vefa)
and inheritance of Musakafat, after \ has been de-
tained for the Treasury.
Certain 35. The vacant posts of collector of Mazbuta Vakfs
dfscend- 01 aud clerk of Non-Mazbuta Vakfs will not be conferred
ible. on children by way of inheritance and on anybody else
in any other v\ ay : they will be taken by the Treasury.
Procedure of } \ikfs. 2 1 1
*
The c'ol lectorsh ips ot Non-Mazbuta Vaki's and cl^rk-
ships held in mortmain (3lL^hriitict ) pt from
this rule, the appointments will be carried out as
before.
!>. Jemazi til akhir, 1287.
P 2
212 The Ottoman Land Code.
XX. AUCTION OF MAHLUL LAND.
REGULATIONS MODIFYING AET. 18 OF THE
TAPU LAW.
VEZIRIAL (1) OKDER CONCEENING THE FORMALITIES
OF PUTTING UP TO AUCTION MAHLUL LAND.
Kedjeb, 1288.
Auction of It is known by Your Excellency that the 18th article
land. U f ^ ne Tapu Law is thus conceived : " The sale by
auction of Mahlul land which, either from want of
persons having right to Tapu or from the renunciation
of this right by those who. had a right, and which can
be sold by auction, is made by the Kaza Mejlis when
the extent of these lands does not exceed 100 domains ;
in case these lands have an area of 100 to 500
donums a new auction is made by the Liva Mejlis
and its adjudication is made to the last and highest
bidder ; in case the extent of these lands exceeds 500
donums, after the above auction a report is addressed
to the Ministry of Finance relative to it, in order
that another auction of them be made by the Imperial r ^
Auction of Mahlul Land.
; <urv .-it the said Ministry: the definitive adjudi- n^:
ration rnust be made within three months at most
from the day of the arrival of the report in question
at ( 'mi-taut inople.
Hut since the putting in force of the law about
Vilayets it has been decided that the report shall be
submitted by the Council of the Governpr-General to
the Ministry of Finance.
However, the system of submitting the affair of the
Kaza to the Sanjak, from there to the Governor-
General, and from the latter to Constantinople, as well
as the granting these lands by means of correspondence,
with many other formalities, and the delays which
result from it cools the zeal of the buyers, who no
longer offer on the spot the desired price, or entirely
keep away from the auctions on account of the diffi-
culties they meet with,
Thus a great number of Mahlul lands are not sold
at all, to the deteriment of the Imperial Treasury. For
this reason the Commission on reforms, with the inten-
tion of putting a stop to these difficulties and thus to
augment the resources of the said Treasury and to
facilitate the people in the acquisition of these lands in
order to encourage agriculture, has decreed as follows :
The final granting of Mahlul lands having an extent
of 300 donums and saleable by auction must be made
to the last bidder by the Kaza Mejlis ; in case the lauds ^ T e\v pro-
have an extent of 300 to 500 donums the final delivery e
is to be made by the Liva Mejlis, but when these lands
214 The Ottoman Land Code.
New rules, have an extent exceeding 500 donums a new sale by
auction is made by the Administrative Council of the
Govern or -General. The Secretaries as well as the
employes charged with the delivery of the Tapus, are
to be present in all these cases of public sale, the first
in the Kaza and the second in the Sanjak and the
relative Vilayet. In case of a sale by auction of lands
having a greater extent than 500 donums, this sale
will be made by the Council of the Vilayet. But as it
is possible that there may be at Constantinople even
a buyer, in order that he may be informed of it and
be able to bid on the spot either in person or by his
attorney, a notice, besides the one inserted in the
paper of the Vilayet, will be sent, before the sale by
auction by the Governor-General, to the printing office
of the Ministry of Public Works. This notice, maki
known when the sale by auction commences an
finishes and when the adjudication will take place,
must be published also in the papers of Constantinople
for the above ends.
In all these cases of public sale the sub-governors of
Kaza*, the governors of Sanjaks and the Valis of
Vilayets will take care to have the above notices
and insertions made in time, to perform the other
formalities required by the law and the regulations, to
prevent any fraud which might injure the interests
of the Imperial Treasury.
The other competent authorities having had informa-
tion of what precedes, Your Excellency will have the
, Auction of Mahlul Land. 215
*
goodness to conform to it in the Vilayet under your
jurisdictipn and do all you possibly can that the
management of these lands will be taken care of
conformably to the beneficent intentions of His
Majesty the Sultan in favour of his people, and in
order that the Imperial Treasury draw from it the
expected profits, the zeal of the purchasers of these
lands bein on the increase.
2i6 The Ottoman Land Code.
XXI. LAW CONCEENING CONDITIONS
FIXING ,THE SECUEING OF DEBT
AFTEE DEATH BY AEAZI MIEIE
AND MEVKUFE, AND MUSAKAFAT
AND MUSTEGHILLAT VAKFIE.
21. Eamazan, 1288.
APPENDIX.
Sale of 6. The Mnsakafat and Musteghillat Mevkufe pos-
r^for sesse ^ in Ijaretein, and the Arazi Mirie and Vakfie of
debt. persons who die owing money to the Government per-
sonally or as guarantee, and whose Ernlak Metrake is
not sufficient for the payment of their debt to the
Government, will be sold and the debt paid from
their value.
Exemption 7. Mahluls are exempt from the authority of the
of Mahiul j ag ^. ar tj c } e an( j ^ ne amount of the claim of the mort-
Janas.
gagee in the value of the lands which have been mort-
gaged (Vefaen Feragh) to him cannot also be interfere
with. And also if the heir who inherits Mueakafat and
Securing of Debt after Death. 217
|T~
Musteghillat MVvkufe has no house, a habitation Saving as
sufficient^ for him to live in shall not be sold, and if dwelling,
the maintenance of the deceased debtor depended on
agriculture, sufficient land for the maintenance of his
house will not be taken from his heirs. The amount
of the land that will be left to the heirs in this way
will be fixed by the Court to which the case belongs.
21 8 The Ottoman Land Code.
XXII. LAW CONCERNING THE SALE
OF IMMOVABLE PROPERTY FOR
DEBT* (1).
Certain 1. Musakafat and Musteghillat Mevkufe possessed in
vendible Ijaretein and Arazi Mirie can be sold like movables
debtt for a judgment debt without the consent of the debtor,
but one of the houses of the debtor appropriate to his
state will not be sold for the debt : it will be left. If
Saving as the debtor is an agriculturist, a sufficient quantity of
house or his land for the management of his house will like-
land am wise not be sold, but left if it has not been mortgaged
(Rehn) or put under a rule, like Vekialet Devrie. The
amount of the land which will be left will be fixed by
the Court which hears the action.
Land, &c., 2. If the debtor proves that the nett revenue of his
soidVf be immovable property for three years is sufficient to pay
enough ^he debt with the legal interest and expenses, and he
personal
property.
NOTE.* There is a letter from the Ministry of Justice, dated 29.
Rejeb y 1302, relating to certain articles of this law leing in force.
Sale of Immovable Property for Debt. 2 1 9
f
concedes to the creditor its recovery, the sale of his
iminoval>V property will be abandoned.
3. A person who accepts the amount of the judg- Ri L ,ht of
rnent debt by way of Havale can claim the sale of the **'""
immovable property of the debtor like the original
creditor alter the matter lias been communicated to the
debtor.
4. The immovable property of a debtor cannot be Saving for
sold on a judgment against which an appeal lies, and
in judgments given by default it cannot be sold with-
out the time for objection having passed.
I
5. The creditor will prepare a notice asking for the Notice by
payment of his debt, and stating that if it is not paid JjJjT tc
he will ask for the seizure and sale of the immovable
property ; and, attaching a copy of the judgment, he will
send it to the debtor, or to his residence through the
executive authority.
6. The creditor shall not claim the sale of the Debtor to
immovable property without thirty-one days from the ta
date on which he sent the notice having passed; if
ninety-one days from the date of the communication
have passed, he will send a notice again ; on this it is
necessary for another thirty-one days to pass.
m 7. After the provisions of Arts. 5 and 6 have been
carried out, a special official from the executive
22O The Ottoman Land Code.
! -
Execution, authority will be sent to the immovable property, and
cause it to be seized. A summary and thp date of
the judgment, the nature of the duties and departure
of the official sent, the nature and boundaries of the
immovable property, that is to say, if the immovable
property seized is khan, house, shop, and such like
property, the. town, Kaza, quarter, name of the street,
number of the floor, and the nature of the property in
the vicinity of which they are ; and if it is land, the
Kaza, village, name of the quarter in which it is
situate, the approximate number of donums, and if
there are any buildings and trees on it, their number
and kind ; the name of the Court which gave the judg-
ment, and the name, surname, and residence of the
plaintiff, will be stated in the seizure document, which
will be prepared for this in duplicate.
Notice of 8, The matter will be published by hand sheets and
in the newspapers twenty-one days before the day of
auction ; a notice will also be stuck in the places where
people pass and collect in the town where the auction
will be held.
Sale hy 9. The auction will close in sixty-one days, and on
whom the last bid remains a temporary decision (karar
dade) will be drawn up on the auction bill by the
executive authority. In the event of an increase of at
least five per cent, within thirty-one days from the date,
of the decision it will be put up to auction again, and
of Immovable Property for Debt. 221
__ ____
*
the increased bid with the expenses belonging t<> it
will lie i ik.-n from the last bidder, and the title-deeds Convov-
of | i will be Driven by the office to which the'
immovable property is subject.
10. If the person to whom the immovable property Liability of
put up to auction has been knocked down retracts from withdraws!
his purchase the auction will be carried out again, and
he will be made to indemnify the damages and expenses
of action.
11. The officials who carry out the auction and the Puffing
officials and members of the Court which gives judg-
ment for the sale of the immovable property shall not
run up the bids, if they do so they will be held legally
responsible.
12. If a person does wrong to the auction he will be Punish-
punished in accordance with Art. 218 of the Imperial offender.
Penal Code.
13. If a person begin an action as to ownership of Time for
immovable property put up to auction, it is necessary ownership,
that he should take action before the last decision has
been given ; and if he does not prove his claim he
will pay compensation for all loss arising from the
delay of the auction, and other causes ; but he does not
lose the right to take action afterwards, if he proves
that for a valid reason he has not been able to take
action before the last decision.
222 The Ottoman Land Code.
,
Rights of 14. If the creditor does not wish the immovable
property of the debtor to be sold at the time specified,
another creditor shall have the right to have it sold in
accordance with the provisions of this law.
Option of 15. If a portion of the immovable property is
to things sufficient to pay the debt, the things which the debtor
wishes shall behold in his presence, and if he is absent
things of which the sale will be advantageous to the
debtor shall be sold.
APPENDIX.
Saving as Debts which have been contracted before the date
debts. of publication of this law, even if the deeds have been
subsequently renewed, will be subject to the old laws
which were in force at the time of the debt ; the pro-
cedure that will be taken concerning immovables on
their account will be in accordance with the said former
laws.
Date of Imperial Irade
15. Sheval, 1288.
15. December, 1287.
Provisions With reference to the manner of preparing the
deeds. 1 '" documents required to be issued to purchasers of im-
movable property belonging to debtors refusing to
sell, and to be sold under the " Law on the sale of
Sale of Immovable Property for Debt. 223
immovable property for debts," His Majesty the
Sultan has been graciously pleased to sanction by his
Imperial Mrudi', granted on request made by decision
of the Council of State, that henceforth when, under
a judgment of the Court, the executive authorities
proceed, according to the rule (in that behalf) to the
sale of any " Mulk " found in the possession of a
debtor after the precautionary conditions 'contained in
clauses 7, 8, 9, of the said law have been fulfilled, and
al'ter the purchaser has been settled on, a Mazbata of
sale shall be drawn up by the Court to serve as
original and to be kept in the Court, and the necessary Prepara-
" Sheri " title-deeds and documents, as also the legal titk-deeds.
instruments showing possession, shall be prepared in
acccordance with it (Mazbata) and given to the
purchasers.
It is decreed (by that Irade) that the issuing of Law to he
instructions to this effect to all the Courts found in the
Capital should be entrusted to your Excellency, and
that the provincial authorities should also be directed
to conform their acts and proceedings to this decision.
A letter to that effect has been written to the necessary
civil authorities, and notice has been given by a
Vezirial letter, dated 25. Zil Kade, 1288 (24. January
1287), that the necessary steps in the matter will be
taken, conformably with the high purport of His
Majesty's said Imperial Irade, by the High Court of
Justice also.
224 The Ottoman Land Code.
XXIII. LAW CONCERNING MAHLUL
VAKF HOUSES.
Sale of 1. Entirely Mahlul houses will be put up to public
housefby auc ti n according to the established system (1). They
auction. w ju no t b e considered as adjudicated, and the leasing
will not be carried out, unless notices stating the time
fixed for the auction have been published in the press ?
and by special hand sheets, and until the period fixed
for the auction has elapsed, and all other bidders have
withdrawn.
Purchase 2. If a co-proprietor wishes to take the Mahlul (2)
house b G m snare f a participated house the modified procedure
- special to co-proprietors will be put in force and the
following deductions in the estimated value of the
Mahlul share will be made in his favour :
20% if the Mahlul share is or more of the house.
30% from $ to
50% less than
3. If a participated house belongs to many co-pro-
prietors, only one of whom wishes to take the Mahlul
share and the others withdraw, the modified procedure,
Mahlul Vakf Houses. 225
of which the degrees are fixed in Art. 2, will be put Purchase
in force in favour of that co-proprietor. If all the bvoneco l
co-proprietors tak.- the. Mahlul share, the modified propri<
procedure will be put in force in favour of them all.
If all the co-proprietors wish to take the Mahlul share
and cannot agree among themselves, without calling for
bidders from outside, it will be put up t to auction
among the co-proprietors and conferred* on the highest
bidder for the Muajel fixed. If none of the co-pro-
prietors wish to take the Mahlul share it will be put
up to auction in accordance with Art. 1, among bidders
from outside and conferred without deduction.
4. If the co- proprietors do not take the Mahlul share Lease or
for themselves but point out and agree to its being let shared
to one of their dependents, the modified procedure de P endant -
stated in Art. 2, to be carried oufc concerning co-pro-
prietors will be can ied out concerning their dependents
also.
5. If the co-proprietors do not wish to take the Sale of
Mahlul share, and refuse to sell with it their shares
the value of which will be paid to them, if the house
can be divided the Mahlul share will be separated and
put up to auction by the Treasury (Imperial Evkaf),
and leased to whomsoever it is adjudicated. If the
house cannot be divided, the system of possession by
turns (3) will be put in force.
6. If the co-proprietors of participated houses are
Q
226 The Ottoman Land Code.
Sale of not to be found in Constantinople but are to be found
participa- i n the provinces, the value of the Malilul share and the
)use - amount of the modified procedure special to co-pro-
prietors will be notified by the Treasury (Imperial
Evkaf) to the local government of the place where the
co- proprietors are to be found, and the local government
will inform the co-proprietors. If they accept it the
price will be collected within three months at most
from the date of communication to the co-proprietors
and sent to the Treasury (Imperial Evkaf) and the
lease will be carried out. If they withdraw, as shown
in Art. 5, if the house can be divided the Mahlul share
will be separated and put up to action. If the house
cannot be divided the system of possession by turns |
will be put in force.
Sale by 7. If any co-proprietor of a participated house com-
whenvalue phuns that the value of the Mahlul share estimated
^ ^ e Treasul T (Imperial Evkaf) is excessive, it will
be put up to auction and offered to the co-proprietor
for the Muajel attained, whether it be more or less
than the estimated value. If he abstains from taking
it, as stated in the preceding article, if the house can
be divided the Mahlul share will be separated and put
up to auction. If the house cannot be divided the
system of possession by turns will be put in force.
8. If a husband alienates to his wife a share of
the house belonging to him, and subsequently, on
Mahlul Vakf Houses. 227
,
account of the death of his wife, is obliged to retake share as'
the same share from Mahlul, a deduction of half the husband
estimated value of the said share will be allowed. and wit "-
The same course will be followed if the Mahlul share
was alienated by wife to husband. But it will not be
allowed in the event of the death of a husband or wife
who has alienated to his wife or her husband the half
of a house while being possessor of the whole. In such
a case the procedure belonging to co-proprietors, in
accordance with the rule stated in Art. 2, will be
carried out.
CONCLUSION.
This Law will be modified by Imperial authority in
order to facilitate any difficulties that may arise in
future in carrying out the lease of the said Mahluls.
Date of Imperial Decree
19. Zilhije, 1288.
16. February, 1287.
Q 2
The Ottoman Land Code.
XXIY. INHERITANCE OF MIRIE AND
MEVKUFE LAND POSSESSED BY
TAPU.
APPENDIX PUBLISHED ON THE 29. EEBI UL
AKHIR, 1289.
Succession As in the case of a person divorcing his wife with ;
husi^nd 6611 power to re-marry her, and before the time allowed to
and wife. gee wne ther she is pregnant or not is fioished, one of
the parties dies, or of a man being betrothed to a
woman, and before the consummation of marriage one
of the parties dies, either of them who proves their
inheritance according to the Sheri having a right of
succession in the land left, if a man who is suffering
from a fatal disease dies after having divorced his wife
Effect of with a definitive divorce, and before the time allowed
to see whether she is pregnant or not is finished, her
inheritance being established in accordance with the
Sheii, she has a right of succession in his land.
NOTE. In accordance with the Imperial Trade communicated by
Vezirial letter, if by the Sheri the luife cannot be an heir, she cannot
have the right of inheritance.
XXY. CONCERNING TITLE-DEEDS
ISSUED BY THE DEFTER KHAKANI
FOR SIMPLE "EMLAK."
Law concerning the delivery of titles in a regular issue of
manner for simple " Emlak " in the towns, villages, and for EmTak
Nahies of the Imperial Dominions, that is to say, for
the site, and buildings and trees thereon, which are
Mulk, houses, shops, vineyards, gardens, and other
property, and for the "Emlak" on Mukata Arazi
Mevkufe and Arazi Mirie paying equivalent of tithes,
that is to say, to the owners of the buildings,
vineyards, and trees.
PREFACE.
1. New printed title-deeds with the Imperial Cypher Printed
at the top will be given for all "Emlak" in the towns, ^ r le a n eeds
villages, and Nahies, and henceforward the possession Emlak -
of "Emlak" without title-deed is prohibited.
2. The new title-deeds are of two kinds, the one for Two kinds
simple "Emlak" and the other is special for places ofdeeds '
The Ottoman Land Code.
where the ground is Mukata and the buildings or trees
thereon Mulk.
staff for 3. The execution of the Emlak procedure is referred
busings. to tne Defter Khakani officials. In every Sanjak
there will be a special clerk under the Defter Khakani
official for IJmlak work, and in every Kaza in
company with the* Tapu clerk there will be a clerk as
his representative with the title of Ernlak Clerk, there
will also be the assistants in accordance with their
requirements.
Office. 4. There will be a special room in the Defter Khane
as the Centre for the Emlak registration proceedings.
CHAPTER I.
CONCERNING THE MODE OF ISSUE OF NEW TITLE-DEEDS
FOB "EMLAK."
5. Commencing at the Centre the -Emlak Clerk of Mode of
every Kaza will go round all the towns, and subse- new titie-
quently the villages and Nuhies iu his Kaza, nnd carry
out the inspection (Yoklama) of the existing " Enilak."
He will take as the basis of his inspection the register
of the places of which the registration has been already
* carried out. Thus the Emlak Clerk, together with a
member of the Liva or Kaza Mejlis Idare who has know-
ledge in such matters and the Tahrir Memour, in the
presence of the Imam, Mukhtar and Council of Elders
of the quarter in which the "Enilak" is, will register Registra-
the " Emlak " and prepare the Yoklama Registers in
accordance with the specimen, and he will examine the
Hujets and other title-deeds that will be shown by the
owners of (i Emlak." The mode of possession of those
who have no Hujet or title-deed being also a reason
for " Mulk," he will inquire whether it is based on the
support of the law and make a note in the column for
remarks. A mark with a stamp will be made on the
Hujets, &c.y in the hands of owners of " Emlak " skow-
ing that the Yoklama has been carried out, and new
title-deeds given.
232 The Ottoman Land Code.
:
Yoklama. It is decided that without the Yoklama of " Emlak "
in the towns being carried out and completed, the Yok-
lama of villages and Nahies will not be commenced.
Making of 6. On the Yoklama Kegister being prepared as
Register! above, and after having been certified with the seal
of the Yoklama Commission, it will be given to the
Mejlis Idare, and it -will be there read in the presence
of the Naib of the town. If the Mejlis consider it
necessary that further inquiries concerning the mode
of possession of a " Mnlk " should be carried out, all the
necessary inquiries will again be carried out in the
presence of the Naib, and the Yoklama Kegister will be
scaled and certified by the Mejlis Idare.
But it will not be permitted for a register to be kept
for more than one month in the Mejlis Idare. In case
there appears in it certain doubtful " Emlak " and the
inquiries require more than one month, these will at
once be separated in order that the inquiries may be
carried out, and the Yoklama Kegister will be sealed
and certified by the Mejlis Idare during one month at
most.
Temporary 7. Temporary certificates will be prepared in ac-
cates." cordance with the Yoklama Kegister which has been
certified in the manner stated, and after having been
sealed at the Head -Quarters of the Liva by the Naib,
Muhasebeji, Defter Khakani official, and Treasurer,
and at the Head-Quarters of a Kaza by the Kamaikan,
Title-Deeds for " Mulkr 233
_ _^__^__________^^_^______^^___________^^_____^_^^_
Nail), Tapu Clerk and Treasurer, they will be delivered
to their owners.
8. The Yoklama Register of every Kaza will be Separate
prepared separately for simple " Emlak " and for Registers
" Kmlak " which is Mukata, and a copy of each, to- J n r d Emlak
Aether with the revenue, will be sent with a Mazbata
Emlak.
to the Head-Quarters of the Liva, and from there the
revenue together with the summary that will be pre-
pared in accordance with the specimen will be sent to
the Defter Khane. The original copies will be kept
in tlieir respective localities.
9. The title-deeds with the Imperial Cypher pre- Forward-
fc pared in accordance with the registers received, will be feed's
sent from the Defter Khane to the Defter Khakani
officials, who will cause them to be delivered to their
owners on restitution of the temporary certificates.
10. Besides three piastres cost of paper, and one Yoklama
piastre clerk's fee, for every new title-deed there will
be taken once the following Yoklama fees :
On "Emlak " valued from 5,000 to 10,000 piastres,
5 piastre* ; for every 10,000 in excess 5 piastres.
On "Emlak " valued at 100,000 piastres, 50 piastres.
On " Emlak " valued at over 100,000 piastres, 100
piastres.
Nothing more than the cost of paper and clerk's fee
will be taken on "Emlak" of a less value than
* 5,000 piastres.
234 The Ottoman Land Code.
CHAPTER II.
CONCERNING ' TH,E PROCEDUKE TO BE FOLLOWED IN
CASES OF SALE, PURCHASE, MORTGAGE (TERHIN),
INHERITANCE, GIFT, AND BEQUEATHAL OF " EMLAK."
Mode of 11. In sales of " Emlak," the seller will in the first
Kmiak place get a certificate from the Imam and Mukhtar of
his quarter, stating that he is alive and the proprietor
of the "Emlak," and if there is a Tahrir Memour '
after having got a Kochan (Sergi) from him also, he
will apply to the Mejlis Idare of the place in which the
" Mulk " is, and a deposition that the " Mulk " has been
sold by a lawful true irrevocable sale will be made
by the seller and buyer, personally or by their lawful
agents, at the said Majlis, in the presence of the Naib
and Defter Khakani or Tapu Clerk, and on acceptance
Registra- by both parties the matter will be registered in a spe-
tion - cial register, and certified, and sealed by the Mejlis.
If the payment of the whole or part of the sale price
is postponed, the Mejlis will cause it to be bound by a
deed, and this kind of promissory note (Dein Seued)
will also be sealed and certified by the Mejlis.
9
12. Sale fees at the rate of ten piastres per mille
Title-Deeds for "Mutt" 235
n _ _ _
rding to the price of sale, three piastres' cost of Fees.
paper, and tone piastre clerk's fee will be taken from
the buyer and paid into the Treasury. A printed
temporary certificate will be prepared according to Temporary
specimen showing the circumstance of the sale, and ce
sealed in accordance with Art. 7 and given to the
purchaser. If there is a new title-deed for the
" Mulk " sold, nothing will be taken for "the temporary
certificate except the cost of paper and clerk's fee.
If there is none, the special fees in accordance with Special
Art. 10 will also be taken from the seller.
13. When the owner of " Emlak " dies the procedure Procedure
will be carried out by the local Mejlis Idare on the
Tahrir Kochan (Sergi) that will be taken in accordance to Emlak -
with the inheritance register (Defter Kasam) if it has
been made, and if there is no inheritance register in
accordance with the division statement, signed and
sealed by the Sheri authorities, on the certificate of the
Imam and Mukhtar of the quarter, showing how many
heirs there are, and after having been registered, sealed
and certified in the special register kept in accordance
with Art. 11, 5 per thousand inheritance fees, 3 piastres
cost of paper and 1 piastre clerk's fee will be taken and
paid to the Treasury, and the temporary certificates
will be delivered to the heirs.
9 1-i. Sale and inheritance fees will be calculated and Valuation.
taken on the total value of simple " Emlak," and only
236 The Ottoman Land Code.
: *
on the value of the trees or buildings which are Mulk
of those which are Mukata. (
Sale of 15. The "Emlak" of those who die without heirs or
aSon by testament will be sold by auction to the candidate,
like Mahlul Arazi Mirie, and the price entered in the
Eeceipts Register, and sent to the Defter Khane.
Mode of 16. In mortgage (Terhin) proceedings the certificate
mortgage, of the quarter in which the " Mulk " about to be
mortgaged (Kehn) is situate, the Tahrir Kochan (Sergi),
the promissory note (Dein Sened) written on stamped
paper, and the title-deed of the property about to be
mortgaged (Kehn) will be taken to the local Defter
Khakani official or Tapu clerk, who will carry out the
following procedure. A printed counterfoil paper
special to mortgage (Terhin) will be filled up in the
presence of the mortgagor (Kahin) and mortgagee
(Murtehin) or their lawful agents, sealed by the
Defter Khakani official or Tapu clerk and Treasurer,
and on being separated from the foil it will be de-
livered to the creditor with the title-deed and pro-
missory note : 3 piastres' cost of paper, 1 piastre clerk's
fee, and a mortgage (Rehn) fee at the rate of 1 piastre
per mille on the amount of the debt will be taken.
On cancellation the same fees will be taken, and the
promissory note and title-deed returned to the owner.
The mortgage (Behn) and cancellation fees will be pai$
into the Treasury and sent to the Capital of the Liva
Title-Deeds for " Mulk." 237
with the receipts registers that will be prepared every Morteaee
month, and there they will be entered in the summary
ter ancl sent to the Defter Khane. The procedure
for mortgage (Bei bil vefa) and mortgage (Bei bil
Istiglal) will be carried out in the explained way also.
17. Without a Sheri Ham for " Emlak T given or sheri Ham
bequeathed the legal procedure will not be carried es
out.
18. The title-deeds given for " Emlak " in accord- Effect of
ance with the above, being official title-deeds, they will
be respected and acted upon in all courts and councils.
19. Actions for mortgage (Rehn), conditions, rnort- Action
gage (Yefa), and mortgage (Istiglal), which are not "
stated in the deed, will not be heard. Thus, if the s rounds -
seller definitely sells a " Mulk," and has given to the
purchaser a deed of sale in accordance with the
custom, says that he gave it in mortgage (Rehn), or
by way of mortgage (Yefa), or (Istiglal), or on certain
conditions, and takes action, it will not be heard.
CONCLUSION.
20. The clerk's fee belongs to the district Tapu Fees.
clerks ; 18 % will be deducted from the Yoklama fees,
of which 10 % belongs to the Emlak clerks, 4 % to the
collector?, and 4 % to the Defter Khakani officials ;
258 The Ottoman Land Code.
6 % will be deducted from the permanent receipts, ol
which 2 % belongs to the Defter Khakani official, and
4 % to the Emlak clerk.
Division of 21. Of the 40 piastres cost of writing that will be
writing, paid (to the Yoklama clerk) for filling each book of
200 temporary certificates 27 will be paid from the
fees of the* Emlak clerk and 13 from those of the
Defter Khakani official, and the details of the work
will be carried out according to the Tapu system.
inspection 22. Matters regarding the inspection and permanent
tratioifof procedure of "Ernlak," and the preparation and
Emlak. sending of registers and summaries, will be carried out 4,
in accordance with the provisions - of the Arazi Mirie
^Regulations and Instructions which are not contrary
to this law.
28. Eejeb, 1291.
28. August, 1290!
( 2 39 )
XXVI. APPENDIX TO ART. 41 OF
THE IMPERIAL LAXD LAW.
And if during this five years the partner dies, his Right of
heirs having the right to inheritance have the right death U of n
and the power to take the land in the explained P artner
within five
method from the alienee. If the alienee dies, the years.
partner has the right and the power to take the
land in the explained method from the heirs
having the right to inheritance of the alienee ; and
if the partner and the alienee die at the same time,
the heirs having the right to inheritance of the
partner have the right and the power to take the See p. 22.
land in the explained method from the heirs having
the right to inheritance of the alienee.
19. Shaban, 1291.
18. September, 1291.
240 The Ottoman Land Code.
XXVII. APPENDIX TO AET. 108 OF
THE LAND LAW.
Forfeiture The land of a murdered person is not transmitted by
inheritance to the accomplices of the murderer, and
likewise the accomplice of the murderer cannot have a
right to Tapu in the land of the murdered person.
28. Eebi ul Akhir, 1292.
22. May, 1291.
XXVIII. APPENDIX TO ART. 6 OF THE
TAPU LAW.
With the exception of Arazi and Evkaf officials, Reward to
\\hoever gives proved information that the price of
sale of Arazi Mirie and Mevkufe and Musakafat ce * led
value.
Mevkufe and simple " Emlak " alienated and sold has
been understated, double the alienation fees on the
amount understated shall be taken from the seller
and purchaser in two equal shares, and one-half paid
into the Treasury and the other half given to the
informer.
24. Jeinazi ul Akhir, 1292.
14. July, 1291 .
242 The Ottoman Land Code.
XXIX. ARTICLE TO TAKE THE PLACE
OF ART. 20 OF THE TAPU LAW.
Reward to With the exception of Arazi and Evkaf officials,
^tcMxm- wnoever gives information of concealed Arazi Mirie
and Mevkufe and Musakafat Mevkufe and simple
" Emlak," the Mahlulship of which has not been heard
direct by the Government, shall be given a reward of
10 % from its Bedel Muajel after it has been conferred
by auction by the Mejlis on the candidate.
24. Jemazi ul Akhir, 1292.
14. July, 1291.
243
XXX. LAW CONCERNING MUSAKA-
FAT AND MUSTEGHILLAT MEVKUFE
HELD IN IJARETEIX. *
1. All Musakafat and MusteghilLit Mevkuie which Rules of
is held in Ijaretein will be inherited :-
i. As before, by the male and female children ^ and , ..
' J m Musteghil-
equally, or, if there is only one male or female child, it Mev-
, . , * . , kufe held
by that one only. i n ij are-
ii. If there are no children, by the grandchildren, tem>
that is to say, by the child ren of the male and female
children likewise equally, or if there is only one, by
that one only.
iii. By the parents.
iv. By the brothers and sisters gerrnan.
v. By the brothers and sisters consanguineous.
vi. By the brothers and sisters uterine.
vii. By the husband or wife. The share belong-
ing to both, as above, will be inherited by one if
only one of the parents is alive. This rule is also
applicable to brothers and sisters.
2. When an heir of the first degree of the seven
R 2
244 The Ottoman Land Code.
I
Preference degrees of possessors of the right to inheritance
fl rst mentioned above is alive, an heir of the second degree
e ree - cannot have the right to inheritance. For instance,
when there are children, the grandchildren, and when
there are grandchildren the parents have no right to
But chil- inheritance. But the children of the male and female
deceased 6 children who die during the lifetime of their father
parent's an( j mo ther take -the place of the children and inherit
share.
from their grandfather and grandmother the share
that would be inherited by their father and mother.
Thus, the person who dies during the lifetime of his
father and mother being considered alive, the share
that he would inherit from his father and mother will
be inherited in equnl shares by his male and female *
children, or the whole by one, if there is only one
Husband or child. The husband and wife will each inherit a
a fourth, fourth share of the Musakafat and Musteghillat that
would be inherited by the heirs who are possessors of
the right to inheritance of the four degrees from the
parents to the brother and sister uterine. If there are
no heirs of the sixth degree, brothers and sisters
uterine, the whole of the Musakafat and Musteghillat
will be inherited by the husband or wife. If there is
no husband or wife it becomes Mahlul.
i
Mortgage. 3. The system of mortgage (Feragh bil vefa) which
is in force for securing debt will be in force as before,
and the conditions and procedure detailing this system t
will be fixed by special laws.
Law. Concerning I jaretein^ Musakafat^ &c. 245
-1. In compensation for the lo^ of AFahluls of Yak Is i
in consequence of the extension of inheritance as ^ l 1 ,.] '
alnv', an annual rent (liaie Muciele) of one per 1000 Mue J ele >
v J j / U p 0n ex _
\vill be fixed on the registered values of Musakafat and tension of
Musteghillat which are registered in the new registers, tauce.
and the ancient rents of these will be abolished. The
place of each Yakf in Musakafat and Musteghillat,
which are mixed with numerous Yakfs, will be surveyed
and delimited, and a separate rent for each Yakf will Separate
be fixed on whatever tails to the share of each Vakf on ^ch Vakf.
the registered value in the registers according to its
present form. If a Musakafat and Musteghillat
Mevkufe is mixed with a fixed rent (Mukata) Yakf or
pure Mulk, a rent of one per 1000 will be fixed only in
proportion to the amount of the share which belongs
to the Ijaretein portion of the value which is assessed
on the whole in the register.
5. The following fees will be taken on the inheritance Succession
of Musakafat and Musteghillat Mevkufe in the explained duties '
way :
15 % as before when inherited by the children.
30 %o when inherited by the grandchildren.
40 %o when inherited by the parents.
50 % when inherited by the brothers and sisters,
germA, consanguineous, and uterine, and the husband
and wife. A fee of 30 % as before will be taken on a
definite alienation, and in cases of mortgage (Feragh
bil vefa), mortgage (Istiglal), cancellation, and release
a fee of 5 % will be taken.
246 The Ottoman Land Code.
Clerk and 6. Oue-fourtli of the fees that will be taken on the
take a inheritance by children of Musakafat and Mucteghillat
fourth of Mevkufe as above will belong to the Clerk and Jabi of
the fees or
duties. the Vakfs as before ; but all the fees that will be taken
on the inheritance by heirs other than children will be
paid to the Treasury and entered as revenue of the
Vakfs.
Same rent 7. The provisions stated above will also be carried
to be paid
for Gedik
hold in
Ijaretein.
for GedTk's out in Gediks which are possessed in Ijaretein. Thus
hdd m separate rents of one per 1000 will be fixed accord-
ing to the values registered in the register on the
Gedik as well as on the place called Mulk, on which
they are established.
Valuation 8. It will be sufficient to collect the amount of the
" f rent on the value that will be reassessed on the sites
buildings. on]y of Musakafat and Mnsteghillat, which has been
burnt or destroyed after the rent (Ijare Muejele) has
been fixed in accordance with the foregoing rules, the
amount which falls to the share of the burnt or
destroyed building will be deducted.
Vacation 9. If, after the rent has been fixed in accordance
new or with the new rules, buildings are built on sites on which
^ e buildings have been burnt or destroyed, and on
sites on which there were no buildings originally, they
will be reassessed in their present form, and a rent of
one per 1000 will be fixer! on the value estimated by \
persons of knowledge.
Lais Concerning Ijarctchi, Musakafat, &c. 247
10. After the rent of Musakafat and Musteghillat as Val ''
to be made
above lias IMM-II tixed in accordance with the new rule ever,
during a period of five years, no increase or decrease in }t
the amount of the rent assigned will be made on
account of the advance or decline of the value of the
property, but once every five years the value of the
said Musakatat and Musteghillat will be inquired into,
and the rent will be renewed or modified.
11. Henceforth no marginal notes will be written on J * sue of
ne\v title-
the title-deeds given in accordance with the new system, deeds.
In cases of alienation, inheritance, separation, and
division, new title-deeds will be prepared and issued ;
"Cancelled" will be written on the old title-deeds,
which will be retained by their owners.
12. Musakafat and Musteghillat, of which the site is Musa
a fixed rent (Mukata) Vakf, and the buildings and trees
Mulk, will be dealt with according to ancient custom.
\Yhen Musakafat and Musteghillat of this kind is sold fi *ed r <- nt -
and bought, alienated and inherited, the old fixed rent
(Mukata) will be augumented to a suitable degree.
13. This law takes the place of the law published by Operation
Imperial Decree on th^ 17. Muharem, 1284, concerning ot
Musakafat and Musteghillat Mevkufe which is held in
Ijaretein, and the law published on the 2. Zilkade, 1285,
as an appendix concerning the mode of execution of
the provisions of the said law. It comes into force from
248 - The Ottoman Land Code.
the date of promulgation, but the old rents will be
abolished from the end of last February, 1290 1 financial
year, and the new rents, fixed at the rate of one per
1000, will be collected from March this year, 1291.
4. Kejeb, 1292.
XXXI. INSTRUCTIONS CONCERNING
THE MODE OF CARRYING 0UT THE
DECISION ADOPTED BY IMPERIAL
DECREE CONCERNING THE ISSUE
OF TITLE-DEEDS BY THE DEFTER
KHANE FOR ARAZI MEYKUFE.
1. As before, title-deeds will be given by the issue of
Muhasebejis of Evkaf for Musakatat of which the
ground and building is Yakf, and for the buildings only
of Yakf Chiftliks which are possessed by Ijaretein, and
by the Mutevellis for Musakafat and Mustegbillat which
are attached to exempted Yakfs, in towns and villages.
Except these, that is to say, for places to which a fixed
ground rent (Mukata Zemin) is attached, Yakf land
which is titheable or pays a fixed equivalent to tithe,
trees and vines of gardens and vineyards whk-h are
Yakf, within or without towns, title-deeds will be given
by the Defter Khane Khakani, and the sale and deposi-
tions, auction and other procedure according to the law
of Mahluls, will be heard and carried out in the Livas by
the Defter Khakani officials, and in the Kazas by the
250 The Ottoman Land Code.
Tapu clerks, in the manner which is ab antique in force
for Mirie and Evkaf land.
Making of 2. The Defter Khakani officials, in their own Livas,
Jnd^Yokia w ^ ^ e ^ ^ rom ^ e Muhasebejis of Evkaf a register of
ma Regis- the number of villages of which the Yoklama system
ter.
has been formerly carried out through the Muhasebejis
of Evkaf, and of. the villages of which the Yoklama has
not yet been made, and in accordance with this register
they will proceed accoiding to established law to carry
out, through the Kaza Tapu clerks, or if these are not
sufficient, through the clerks they will appoint from
outside, the Yoklama of the villages of which the
Yoklama has not been made, and they will show in the
Yoklama register the Vakf and administration to which
the places that are registered during the Yoklama
belong, and of what kind of things the benefice is com-
posed. These explanations will be carried out in
accordance with the register which they receive as a
specimen at the time when the handing over from the
Muhasebejis of Evkaf takes place.
Possession ^. ^- n accordance with Art. 1 of the Instructions con-
without tained in the Destur concerning Tabulated Certificates,
title-deeds
unlawful, the possession of Arazi Mevkufe without title-deed is
ab antiquo illicit, and as from the date (25. Kamazan,
1281, 9. February, 1289) of the formation of the pro-
vincial title-deeds at the Imperial Evkaf Treasury the
possession by title-deeds other than those issued from
of Titlc-Dccds by the Defter, &c. 251
i
lluit date up to now bv the said Ministry leaving the Possession
J without
Imperial 4'yplnT at top, issued by Mutevellis and title-deeds
:its before the said date, bearing known seals, and
written on paper without the Imperial Cypher as not
to be roistered at Constantinople will not be p< r-
. the title-deeds of those who possess this kind
of title-deed will be changed on taking only four Issue of
new form
piastres each, cost of paper and clerk's fee, and newoftitie-
Vakf title-deeds with the Imperial Cypher at top
will be issued. If a title-deed without the Imperial
Cypher issued after the said date appears, and the
seal or signature of this title-deed is known on
taking the clerk's fee and cost of paper, it will be
changed for a title-deed bearing the Imperial Cypher,
and as this kind of title-deed is contrary to law and
issued with the intention of embezzling the aliena-
tion or inheritance fees paid, it will be necessary to
claim a fee of 5 % according to law from the person who
issued the title-deed at the time. If the title-deeds
without the Imperial Cypher issued after the said date
are unknown, the Evkaf Mudirs will inquire into the
prescriptive right (Hak Karar) of the owners as ex-
plained in the law; if it is established the procedure tbe* 8
according to law will be carried out, and on a fee of 5 % P roved -
on the estimated value, with clerk's fee and cost of
paper being taken, the title-deed with Imperial Cypher
will be issued ; if it is not established it will be treated
as concealed land. For the purpose of carrying out this
procedure it is necessary for a Mazbnta to be made by
252 The Ottoman Land Code.
- !
Loss of the Mejlis. A new title-deed will be issued to persons
title-deeds
who have lost their title-deed with the Imperial Cypher
on the registers being examined, and the clerk's fee and
cost of paper being taken.
Duty upon 4. On the alienation and inheritance of Arazi
or devolu- Mevkufe a fee of 5 % will be taken, and if it is mixed
Metkufd witn " Emlak " the procedure according to its special
law will be carried out for the "Emlak." Though
the mortgage (Istiglal) of Arazi Mevkufe will be
carried out exactly according to the law which is in
force for Arazi Mirie, when these are mortgaged
(Istiglal) or cancelled in accordance with the Evkaf
law a fee of 2J % will be taken. As shown in the
specimens of the Emlak summaries, the amount of
fees for mortgage (Istiglal) and cancellation that are
taken during a month will be shown separately in the
balance column of the Kaza receipts register for that
month, and when they are transferred to the Li\a
summary register, they will be shown in the line for
that Kaza and in the remarks column.
Yoklama; 5. The Yoklama and permanent procedure, and thf
procedure 1 ; receipts registers and summaries of Arazi Mevkuie
receipts W Q} ^ e carr i e( j 01] t in accordance with the specimen
registers ;
summa- sent. There will be inserted 'in Nos. 1 and 2 of the
nes.
specimens, under the serial number, in the open line of
the administration column, the administration to which
the Yakf to which the place belongs is attached ; in the ^
line of the Yakf column under it, the Vakf in which it
Giving of Title- Deeds by the Defter, &c. 253
.
ix situate; and still under that, in tin? column for Filling-up
-sible, the kind of benefices to which meus!"
that land is Vakf, in accordance with the regi-t--r
n- -civrd li-.nn the Muhasebeji of Evkaf at the time of
handing over.
6. The nature of the receipts inserted in tfie registers Nature and
\\ill be shown separately at the bottom >of the receipts receipts.
register, as shown in the specimen. The number of
piastres to which the total receipts of each Yakf amount
will be written in the total column, and in the line the
name of the Vakf will also be entered.
7. Administration, Yakf, and Benefice columns having Entries in
been opened in the temporary certificates that will be Certificates
filled up in order to be given to possessors of land, the
Administration and Yakf to which the land is attached,
and the nature of the benefice, will be explained in
these, and if the place for which the title-deed will be
pven pays equivalent to tithe, or a fixed fee, the
amount of the equivalent of tithes and fixed annual fee
that may have accumulated for how many soever years
will be collected and entered in the special column, as
shown in the specimen.
8. The Kaza Summary Eegisters will also be Kaza Sum-
prepared in accordance with the system adopted for
Arazi Mirie, but, as shown in the Kaza Summary
Specimen No. 3, in the column opened for names of
254 The Ottoman Land Code.
Name of Vakfs, the name of the Vakf will be written, and the
receipts and deductions will be written in ( the line of
the special column. As the Yoklama of each town or
Making -of village is completed, the towns and villages will be
separated from each other on the left of the Vakf
names, and drawing a parenthetical line for each, the
name of the town or village will be written on the top.
The next village being commenced, and continuing to
write them in turn, a total will be made.
Liva sum- 9. Though the surplus columns of the Liva summaries
les> will be appropriated and filled in exactly in accordance
with the instructions for Kaza summaries, in accor-
dance with Specimen No. 4, after the 10 per cent., ti '
taking of which is ordered by law, has been deducted
from all the revenue in the Yoklama summary, with
the exception of the clerk's fee and cost of paper, on
Payment paying it into the Treasury, on account of the Evkaf
ic^per through the local Mejlis, the receipt that will be taken
cent. from the Treasurer will be given to the Muhasebeji of
Evkaf, and in its place a certificate will be got from
the said Muhasebeji, stating that the amount of the
payment is on hand in the safe. The Liva summary
will be prepared in triplicate, and sealed by the officials
who customarily seal, together with the Muhasebeji of
Evkaf. One copy will be given to the said Muhasebeji
to be sent to the Imperial Evkaf Ministry ; another
copy will be attached to the certificate that will b<-
taken from the said Muhasebeji, stating that the
Giving of Title- Deeds by the Defter, &c. 255
amount is on hand in the safe, and together with the Disposal of
balance oA the revenue, that is, clerk's fee and cost of c "Jj e g C *f e
paper, will be sent direct to the Defter Khane; the Livasum -
mary.
other will be kept in the local Defter Khakani Office.
In accordance with Specimen No. 5 Liva Summary
the summary of permanent revenue will be prepared
in the way explained, but the clerk's fee being the clerk's fee.
property of the Kaza Tapu clerks, only the cost of
paper will be sent with the summary, &c., to the
Defter Khakani.
10. The greatest care and attention should be given Separation
at the time of registration and inspection (Yoklama) Q ^*
for the Arazi Mevkufe procedure not to be mixed with Mevkufe
from those
the Arazi Mirie affairs. As the registers sent to the
"A f * ' '
Defter Khakani will be compared with the Impedal
records, if any confusion is observed they will be
returned and the officials held responsible. Care and
attention will always be taken and paid for the revenue
of Arazi Mevkufe also not to be mixed with the revenue
of Arazi Mirie.
11. As the salaried clerks in company with the Employ-
Defter Khakani officials are hardly sufficient for *&
Tapu and Ernlak matters, if the supervision and cials -
arranging of Evkaf matters is also referred to them,
in some places where the Arazi Mevkufe is extensive
(he management will be difficult. In Sanjaks where
the Vakfs are large, an extra clerk will be employed
to look after Evkaf matters only. Two piastres from
256 The Ottoman Land Code.
Remunera- the 10 % which belongs to the Vakf Yoklama Clerks,
ext*aclerk, ore pi astre fr m tne ^ ees of 4 % of the Defter Khakani
official, which are also from the Yoklama of the Vakf,
one piastre from the 4 % which belongs to the Collector,
and two piastres from the 4% which belongs to the
Kaza Tapu Clerks from the permanent fees will be
Extra pay given to this clerk. If the Chief Clerk of the Defter
Khakani and h?s companion undertake the manage-
ment without impeding the work and this is possible t
of the said fees that would be given in case a clerk
were employed for Vakf work, three-fifths will-be given
to the Chief Clerk of the Defter Khakani, and two-fifths
to his companion, and the supervision of Vakf matters
will be given to them.
*
CONCLUSION.
HOW diffi- The purport of these instructions is composed of \
be settled, matters the explanation of which is necessary for Arazi
Mevkufe, as the current work will be carried out in
the same way as the procedure for Arazi Mirie, in case
of doubt as to its execution the Kaza Tapu Clerks
will ask for instructions from the Defter Khakani
officials, and in case of necessity the latter from the
Ministry of Defter Khakani.
6. Bejeb, 1292.
26. July, 1291.
( '57 )
XXXII. SUBSEQUENT DECISION STAT-
ING THAT THE SAID LAW IS
NOT OBLIGATORY, AND WILL BE
CARRIED OUT WHEN PERSONS
DESIRE.
Although it was lately decided to extend in a com-
pulsory manner to the Mnsakafat and Musteghillat
of Mulhaka Yakfs the system of extension of in-
heritance which is in force in an optional manner in
Musakafat and Musteghillat of Mazbuta Yakfs, but as
the public benefit and satisfaction have not been attained
by such compulsory extension, and as it is the wi>h
of His Imperial Majesty to obtain the perfect pleasure
and approval of all his subjects, and other possessors
of property, and as forcible treatment in the rights of
possession of property is contrary to the rules of justice.
from the 15. Zilkade, 1291, 2. December, 1290, the
extension in a compulsory manner of this system
of extension of inheritance has been abandoned, and an
Imperial decree having been issued that the applica-
s
258 The Ottoman Land Code.
Law of in- tion to Mazbuta and Mulhaka Vakfs is optional to the
to be per- owners of property who desire it, and the law having
missive. a } go b eea amended in this manner, the matter is
published for general information.
15. Zilkade, 1292.
2. December, 1291.
259
XXXIII. LAW CONCERNING LAND.
1. Mussulman and non-Mussulman subjects have Mussulman
.. p *TI i* md non-
equal rights in receiving possession ot village, cum- Mussulman
vated, and Chiftlik lands in the Empire, whether Mirie JJ^J^J
or Vakf, and which are transferred by auction or footin g-
alienated by individuals; if there are any Mirie or
Mevkufe lands of which the granting into the possession
-j. of non-Mussulman subjects has not been carried out in
obedience to the ancient usage, such usage is abolished,
and the provisions of the law will be carried out
without distinction.
2. The procedure in accordance with the provisions Procedure
of the Imperial law will be carried out without distinc-
tion regarding land and property which Mussulman a PP hed -
and non-Mussulman subjects receive from each other.
3. Farmers who are cultivators in certain Chiftliks, Privilege
and who are Mussulman or non-Mussulman subjects, farmers!"
shall have preference rights at the time when land
sold by auction or alienated by private individuals is
being received.
7. Muharem, 1293.
22. January, 1291.
s 2
260 The Ottoman Land Code.
XXXIV. INSTRUCTIONS SHOWING THE
PROCEDURE TO BE FOLLOWED IN
THE ( ISSUE FROM THE DEFTER
KHANE OF TITLE-DEEDS FOR MU-
SAKAFAT AND MUSTEGHILLAT
YAKFIEH IN CONSTANTINOPLE
AND IN THE PROVINCES.
PROCEDURE IN CONSTANTINOPLE.
ud Office 1. The Title-Deeds Office at the Imperial Evkaf
Millistl T wil1 be transferred to the Defter Khane
Ministry. As in the provinces this office will be
called " The Defter Khakani Office of Constantinople,"
all " events," that is to say, the alienation, inheritance,
mortgage (Istiglal), cancellation of mortgage (Istiglal),
and other proceedings regarding every kind of Arazi
and Kmlak in the Municipal Circles of Constantinople,
will be supervised here in accordance with the estab-
lished laws.
2. When the " events " of any kind of Arazi and
Emlak are being carried out, marginal notes will not
Jssiic of Title- Deeds by tlic Defter Khant. 261
be written en the old title-di-eds. as in the provinces.
new titlft-
untd tlio imperial title-deeds arc given: a temporary deeds,
ceitificate, in accordance with the enclose i specimen,
will be issued to the owners. A note will be made
against the entry in the old register, and a stamp with
the sentence " new title deed issued" being put on the
old title-deed, it will be returned to its owner.
3. Ihe Defter Khakani Ministry will prepare and Issue of
new title-
issue, in accordance with the tabulated registers sent to deeds in set
it by the Defter Khakani Office of Constantinople, the
permanent title-deeds for land and properties of which
the "events" have been registered and the temporary
certificates issued, and the restitution of the certificates
issued temporarily will be demanded. These perma-
nent title-deeds will be issued in one form, in accor-
dance with the enclosed specimen, for every kind of
Musakafat and Musteghillat Mevkufe ; but the extension
of inheritance law will be printed on the back of those Inherit-
issued in cases where the inheritance has been ex- ar
tended, and the articles of law showing the rights of
possession will be printed on the back of those issued
to foreign subjects. Foreign
subjects.
4. The title-deeds for*Mazbuta Vakfs will be issued Mazbuta
on being sealed by the Defter Khakani ; and the title- haka "
deeds for Mulhaka Vakfs, after having been sealed by
the said Ministry also, the Mutevelis will be summoned
and made to seal them also.
262 The Ottoman Land Code.
Separate 5. New separate registers will be kept for each one of
the thirteen Municipal Circles of Constant hi ople, and
the current events will be entered in these registers.
Auction 6. With the exception of Musakafat, whether Mahlul
certain or Ijare Vahide, of which the conversion into Ijaretein
is necessary, in Constantinople and its suburbs, and of
places which are not leased to anybody, and are
assigned to the public ab antiquo, and the sale of which
is illegal by Sheri law, in the sale of sites to which
there is no objection, the auction will be carried out by
the Imperial Evkaf Treasury in accordance with the
law, and on its termination, after the Muajele has been
Kegistra- received, the formalities of registration in the name of
sale. the person to whom it is to be transferred will be
carried out by the Defter Khane on notification from
the said Ministry enclosed in the list, and the assignat
shown by the owner will be taken, and in its place the
Title-deed, title-deed prepared will be delivered.
Payment of 7. In order that the salaries and expenses of the
salariesai
expenses.
salariesand Title _ Deeds Office> transferred from the Imperial Evkaf
Office to the Imperial Defter Khane, may be paid by
the Defter Khakani Treasury, the three piastres* cost of
paper and one piastre clerk's fee taken on title-deeds
for Arazi Mevkufe and Musakafat Vakfie will wholly
belong to the Defter Khane.
8. All the revenue to be collected by the Defter^
Khane in Musakafat and Arazi Mevkufe proceedings
Issue of Tide-Deeds by the Defter Khant. 263
be received by the Defter Khane Treasurv. The Disposal of
duties and
Uutevelis of Mulhaka Vakfs will be kept out fees.
of this in order to be paid to them. The remainder
will be delivered weekly to the Imperial Evkaf
Treasury with the specified registers. The share of
these receipts belonging to the Clerk and Jabi will be
at once paid to its owners by the Imperial Evkaf
Ministry in accordance with the system.
9. The same system as in the provinces will be Procedure.
followed in Constantinople and its environs with regard
to the mode of carrying out the procedure, and the Title-deeds
issue of title-deeds for pure Mulk by the Defter
Khakani officials, in accordance with the special law.
PROCEDURE IN THE PROVINCES.
10. The records of Musakafat and Musteghillat Records of
Mevkufe in the provinces will be handed over by the and Mus-
Muhasebejis of Evkaf to the Defter Khakani officials in
each Liva, in the same way as the handing over of the
records of Arazi Mevkufe has been carried out.
11. All the " events " of Musakafat and Musteo-hillat Duties of
Defter
Mevkufe, that is to say*, the alienation, inheritance, and Khakani
other procedure in accordance with their special laws, of
will be supervised and arranged through the Defter
Khakani officials. As in Arazi Mevkufe, the said
officials will deliver temporary certificates in order to
264 T/ie Ottoman Land Code.
!
secure owners of property until the original title-deeds
are sent from the Defter Khane. And, as in Constanti-
nople, a stamp will be put on the old title-deeds and
given to their owners.
Monthly 12. In order that the permanent title-deeds may
register
be prepared and sent, a monthly register of the Musa-
kafat and Musteghillat Mevkufe of which the "events "
have been registered and temporary certificates issued
will be prepared and sent to the Defter Khakani
Ministry, together with the " events " of Arazi Mev-
kufe'.
Payment 13. After the fees due to the Defter Khane officials,
into Local and the share belonging to the local Mutevelis of
>my ' Mulhaka Vakfs, have been deducted from the receipts
from Musakafat and Musteghillat Mevkufe, the balance
will be paid into the local treasury for account of the
Muhasebejis of Evkaf, together with the receipts from
Arazi Mevkufe. A receipt will be taken from the said
Muhasebejis, which will be sent with the monthly
registers to the Defter Khakani Ministry.
Fourth 14. The fourth share of the receipts from Mulhaka
Vakfs belonging to the Mutevel'is, as stated in Art. 13,
will be delivered at once to the local Mutevelis or
their agents by the Defter Khakani officials, who will
cause the temporary certificates to be sealed by them. ^
The shares of the Mutevelis and Agents who are in
Issue of Title-Deeds by the Defter Khane. 265
~
Constantinople will be sent with the register to the Payment '
Defter Xhaiu. the Muti'velis and Agents will be ^ ea ^g by
:moned from there, their shares paid to them, and Mutevelis
and agents.
tin- ^Ministry will make them seal the permanent title-
deeds. In order that the title-deeds of Vakfs of
which the Mutevelis and Agents have not yet been
appointed, or of which the Mutevelis and 4-gents them-
selves or their Agents cannot be found on inquiry, may Avoidance
not be detained, the Defter Khakani officials w 7 ill cause
them to be sealed by the Naib, and the share will be
sent to the Imperial Evkaf Treasury to be given to
the Mutevelis when they appear. The permanent
title-deeds will be prepared and sent to their destina- Trans-
tion by the Defter Khane, in accordance with the local title-deeds,
registers received. Those for Mazbuta Vakfs and
Mulhaka Yakfs of which the Mutevelis are in Con-
stantinople will be given to their owners as sent from
here ; those for Mulhaka Vakfs of which the Mutevelis
are in the provinces will be delivered to their owners
after they have been sealed by the Mutevelis through
the Defter Khakani officials, and the temporary certifi-
cates given before will be taken back.
15. All salaries and expenses on account of the Salaries
transfer of the provincial Musakafat business to the
Defter Khakani will be paid by the Defter Khane, and
the three piastres' cost of paper and one piastre clerk's
fee taken as before on registration of " events " for
new title-deeds issued for Musakafat and Musteghillat
266
The Ottoman Land Code.
Mevkufe will belong to the Treasury of the Defter
Khakani Ministry.
Sale, &c.,
of certain
lands by
Muhase-
bejis of
Evkaf.
Registra-
tion and
certificates
as to
registered
Mahlul.
Other
duties of
Muhase-
bejis of
Evkaf.
16. With the exception of land in the provinces of
which the procedure has been carried out in accord-
ance with the provisions of the Land Law, and Mahlul
of Ijaretein <Musakafat and Musteghillat Mevkufe, and
Ijare Vahide Mhsakafat of which the conversion into
Ijaretein is required, and places as stated in Art. 6
which are not let to anybody and have been assigned
to public use db antique, and the sale of which is not
allowed by Sheri law, the auction, collection of
Muajele, and transfer in the legal and systematic way
of sites in the sale of which there is no obstacle, will
as before be carried out by the Mubasebejis of Evkaf.
The Defter Khakani officials will carry out the regis-
tration formalities and issue temporary certificates for
registered Mahlul to the persons to whom it is sold
and to whom the transfer is necessary, on production of
the auction bill, and the Mazbata of the Mejlis Idare
according to law and custom.
17. The Ijare Muejele of Ijaretein Musakafat and
Musteghillat in the provinces will be collected annually
through the Muhasebejis of Evkaf : the auction and
adjudication of Mahlul will also be carried out through
them. In order to collect the Ijare Muejele annually
at the proper time ; to know the properties of which A
the inheritance has been extended ; to distinguish those
Issue of Title-Deeds by the Defter Khanl. 267
which have become Mahlul, to be a means of collecting Monthly
report of
the Ijar, and to correct the registers kept by the sales, etc.,
Muhasi-bijis ';uf, the Defter Khakani officials
will send monthly to the Muhasebejis of Evkaf a officials -
return of sales, transfers by inheritance, and other
proceedings and " events."
SPECIAL ARTICLE*
18. Instructions regarding the office work and duties Duties of
of Defter Khakani officials will be issued at different
times by the Defter Khakani Ministry.
9. Bebi ul evel, 1293.
23. March, 1292.
268 The Ottoman Land Code.
XXXY. APPENDIX TO ARTICLE 91
OF. THE LAND LAW.
Unlawful If it is ascertained that the inhabitants of a village
wjod? g n t having the right to take wood, have by encroach-
ment taken wood from the wood which has been
assigned to the inhabitants of another village, the
standing value of the trees which have been cut down
will be collected from the persons who unlawfully
encroached and took wood, and divided amongst all
the inhabitants of the village who possess the right to
take wood.
10. Bebi ul evel, 1293.
3. March, 1292.
XXXVI. INSTRUCTIONS REGARDING
THE PREPARATION IN A REGULAR
MANNER OF CERTIFICATES RE-
CEIVED BY THE EMLAK OFFICE,
1. The certificates for alienation, inheritance, and Certificates
K building to be brought by owners of property to the ating in-
Ernlak office at the Prefecture of the town will be a n ^uiki-
obtained from the Imam of the quarter in which the in &-
property is situate. In order that Mukhtars may be
informed of such matters, and in case of necessity be
held responsible, their seal on the certificate is also
necessary.
2. If one or both the Mukhtars cannot be found or Procedure
when
will not sign a certificate, the reasons will be written in Mukhtars
postscript on the certificate, and the postscript will found!
again be sealed by the Imam.
3. The number of the properties, street in which the Particular,
property is situated, number of title-deeds by which pert'v."
the property is held, name, address, calling, nationality,
and extent of share of the shareholders, if any, will be
2 70 The Ottoman Land Code.
~~T~ *
stated in a true manner in the certificates issued for
sale and inheritance by the Quarters, Patriarchate and
Chief Eabbi.
Certificate 4. The certificates required when any Gedik is
" alienated must state whether the owner is alive.
After this certificate has been given by the Imam and
Mukhtars of the Quarter in which the owner lives,
a sealed and certified declaration as to the share and
value of the Gedik will be made on the certificate by
the Chief of the Trade to which it is attached, and by
the Council of the Khan if the said Gedik is situated
in a Khan.
\
Certificates 5. The certificates given by the Quarters for aliena-
Quarters. tion, inheritance, and building must not be dateless,
rubbed out, or erased ; certificates in this state will not
be accepted.
Notice of 6. In order that a note may be made against the
becoming entry of a property which has become Mahlul by the
Mahlul> death of the owner without child, it is the duty of
Imams and Mukhtars to make known the fact by
certificate to the Emlak Office at the Prefecture of the
Town at the same time as a certificate is given by the
Quarter to the Imperial Evkat Treasury, and they will
be obliged to carry out this duty.
7. Together with certificates for alienation, inherit-
ance, and building, the owner will bring with him and
Mukhtars Ccrtificat 271
. to the Einlak Office all the title-deeds (Temesuk) production
, . , , of title-
wbich he possesses. deeds by
owner.
8. It is the duty of all Imams and Mukhtars to Return of
return to the Erulak Office, within ten days of its issue, 5S^h
the permit issued by the Emlak Office for the aliena- abandoned,
tion of a property if the alienation of that property has
been abandoned in any way.
9. The said certificates will be written according to Form of
the copies given below. Application must be made to ce
the Emlak Office for the certificate of an alienation that
requires a procedure different to the conditions shown
in the said copies.
CERTIFICATES FOR ALIENATION AND INHERITANCE.
This certificate has been delivered to the Emlak Specimens
Office in order to show that Ali Effendi, son of Veli, of at c e er
the wax chandler trade, is the owner by three title-
deeds (Temesuk) of a house No. 14 Jami Sherif Street,
in our quarter, belonging to the Yakfs of Merzifoni Kara
Mustafa Pasha, Amuja Hussein Pasha, and Avariz of
the Aidin Ketkhuda quarter, that he is living at the
present day, and that he will now alienate the said
property by mortgage* (Vefaen Feragh) to Adile
Khanum, daughter of Osman, wife of Ahmed Aga, of
the brass founder trade, for 27,350 piastres.
This certificate has been delivered to the Emlak
272 The Ottoman Land Code.
Specimen Office in order to show that Rifaat Effendi, son of
cates. Mehmed, a Finance Clerk, died while possessing by
two title-deeds (Ternesuk) a hous? and garden, No. 5
Nergis Street, in our quarter, lx to the Vakfs
of Pirinjji Yusuf Aga and Ahmed Ketkhuda, and that
after it has been inherited by his children, Mehmed
Effendi, of full age, and Khadije Behie Khanum, minor,
in equal shares, it will be alienated by the one of full
a^e in person, and the share of the minor, by Sheri
Hnjet, through guardians, to Kashid Aga, son of Ahmed,
of the tobacco trade, for a sum of 15,000 piastres.
This certificate has been delivered to the Emlak
Office in order to show that by the death of Agiah
Effendi, son of Suleiman, the owner by eight title-
deeds (Temesuk) of a house, garden, and two Masuras
of water, belonging to the Haremein Sherifein Vakfs,
No. 42 Orkhanie Street, in our quarter, his five
children, Ahmed and Feizi Beys, of full age, and
Shevkie Khanum, Husni Bey, and Alevie Khanum,
minors, inherit it in five equal shares. After the
share of Ahmed Bey, deceased, has been inherited by
his daughter Rushdie Khanum, minor, and the share
of Shevkie Khanum, deceased, has been inherited by
Shemsi Bey, of full age, and Murad Bey, minor
i. The two- fifth shares of the minors, Husni Bey and
Alevie Khanum ;
ii. The one-fifth share of the minor, Eushdie
Khanum ;
Mukhtars Ccrtificaf 273
iii. r ; are <>f tin- minor, Murad Bey, Specimen
and ,
iv. The sha i/i and SheniM lW<.of full age,
36 and appurtenances, will be
alimated
(i.) By their mother, Derya Khanum, daughter of
Abdullah;
(ii.) By her father, Shefik Bey, guardian ;
(iii.) By Sheri Hujet, by his brother Shenisi Bey,
and
(iv.) By personal consent, to Eiza Bey, son of
Abdul Hamid Eifendi lor 109,000 piastres.
* This certificate has been delivered to the Emlak
Offic^ in order to show that Chibukji Kerim Aga, son of
Abdul Latif, the owner by two title-deeds (Temesuk)
of a building site, Xo. 11 Imam Street, in our quarter,
of 3600 ziras, belonging to the Kareki Hussein Chelebi
and Ham a Khatun Yakfs, will separate a piece of 975
zirns from the said building site, in accordance with
the plan prepared, the front of the separated site to be,
as before, on the said street, and alienate to the owner
of the said house, Rifaat Eifendi, son of Sherif, Customs
Clerk, and his wile, Fatmetuzehra Khanum, daughter
of Eejeb, in equal shares, for 20 piastres per zira, total
19,500 piastres, and that the said Aga is living at the
present day.
This certificate is delivered to the Emlak Office in
T
274 The Ottoman Land Code.
/
Specimen order to show that Naile Khanum, daughter of Abdullah,
certifi-
cates.
owner by one title-deed (Temesuk) )f a house and
garden, No. 6 Shahin Street, of our quarter, belonging
to the Sultan Mustafa III. Yakf, is dead, that the said
house will be inherited by her son, Majid Bey, son of
Eahim Bey, that the said deceased has no other than
the said child, and that the said child is living at the
present day.
This certificate is delivered to the Ernlak Office in
order to show that the orphans of Ahmed Effendi,
Paper Seller, Ali Eashid Effendi and Khadije Saihaz
Khanum, mortgagees (Vefaen) of a house with two title-
deeds (Temesuk), No. 1 Chikrnaz Cheshire Street, or
our quarter, belonging to the Ayaz Pasha Vakf, have
received the equivalent, 5000 piastres, and will cancel
the mortgage in favour of the owner, Hashirn Aga,
son of Yakub, of the handkerchief trade.
As Hassan Aga, son of Muhsin, Fruiterer, owner by
two title-deeds (Temesuk) of one-third share of a
grocer's shop, No. 155 Laleli Street, of our quarter,
paying 60 akjes Ijare Muejele, with its appurtenance,
considered as 120 shares, is going to alienate by mort-
gage (Vefaen Feragb) his said .share of the shop and
Gedik to Ibish Aga, son of Mehmed, Turban Seller,
for 16,000 piastres, this certificate is delivered to the
Emlak Office in order to show that the said Hassan
Aga is living at the present day.
Mukhtars Certificates. 275
^
BUILDING, ADDITIONS, REPAIRS, AND DEMOLITION. Specimen
certiti-
This certified is delivered to the Emlak Office in cates -
order to show that Kifaat Effendi, son oi' Eshref,
owner by three title-deeds (Temesuk) of a building
site, No. 4 Beyjiz Street, of our quarter, belonging
to the Bali Pasha Vahf, will build a house of three
storeys, with five rooms and two ante-rooms.
REPAIRS AND ADDITIONS.
This certificate is delivered to the Emlak Office in
order to show that Ayshe Khamim, daughter of Tur-
mush, owner by one title-deed (Temesuk) of a house
and garden, No. 2 Durt Cheshme Street, of our quarter,
belonging to the Zeineb Khatun Yakf, will make a
small repair to the said house in its present form.
CONVERSION AND ADDITION.
This certificate is delivered to the Emlak Office in
order to show that Izzet Effendi, son of Rifaat, owner
by five title-deeds (Temesuk) of the fruiterer and grocer
shops, No*. 60 and 62, Uzun Gharshu Street, in our
quarter, will demolish them, and build one haber-
dasher's shop.
DEMOLITION.
As Rifaat Effendi, owner of house No. 3 Banka
Effetidi Street, in our quarter, is going to demolish it
T 2
276 The Ottoman Land Code.
Specimen in order to make it into a separate garden for the
cates. house with garden, No. 4, opposite, this certificate is
delivered to the Emlak Office in order that the
registration may be amended.
CERTIFICATED FROM HEADS OF TRADES CONCERNING
GEDIKS.
There being a tailors' Gedik in the clothier's shop,
No. 33 Aralik Street, Terzi Bashi, Grand Bazaar, and
the owners being Ahmed EfTendi, son of Ali, and
Theodori, son of Georgi, as the paid Theodori will
now alienate his half-share to the said shareholder
Ahmed Effendi for 70l)0 piastres, this certificate has
been delivered to the Emlak Office in order to show
that the said Gedik is truly theirs, and that this sum
is its value.
CERTIFICATES FROM THE PATRIARCHATE, CHIEF
KABINATE, CHURCH AND COMMUNITY COUNCILS.
Seller.
As Peshtamalji Oglu Agop, son of Mardiros, resident
in Tatavla, of the Curiosity Trade, is going to alienate
by mortgage (Vefaen Feragh) ibr 20,000 piastres, his
house, No. 35 Bali Pasha Street, Muhsine Khutun
quarter, in the vincity of Kum Kapu, this certificate is
delivered to the Emlak Office in order to show that he
is living and an Ottoman subject.
Mnkhtars Certificates. 277
Ev
A- Kyserli Oglu ( iror^aki, son of Ytisil, print*..
nt in tin 4 Ktmi'kji (jiiarter, is going to purchase
fur 120,000 piastres a house, No. 35 Bali Pasha Street,
Muhsine Ivhatun quarter, iu the vicinity of Kum
Kapu, this certificate is delivered to the Emlak Office
in order to show that he is an Ottoman subject.
278 The Ottoman Land Code.
XXXVII. ACTION NOT TO BE TAKEN
IN THE COURTS AND PUBLIC OF-
FICES BEFOEE THE VERGI ON
PROPERTY HAS BEEN PAID.
Vergi to be In order to facilitate collection, a Vezirial order has
hearing of been issued to the Sheikh ul Islamate, and the
search of Ministries of Finance, Evkaf, and Defter Khakani, that
register. no actions with regard to property in Constantinople
and the three cities are to be heard in the Courts, or
search made in the registers of the Evkaf and Defter
Khakani without the production of receipts for Vergi.
10. Bebi ul Akhir, 1293.
22. April, 1292.
279
TRANSLATION OF NOTES IN LEGIS-
LATION OTTO MANE.
Notes to L
XOTE (a). In the second section of private rights we have
clause
1. The legislation which exceptionally governs some categories
of landed property, and specially those of public lands (Beit-nl- Classitk-a-
nial), that is landed property of the State considered as an in- tion of
dividual, property of which only the possession (Tesarrtif), that is, laml *
the whole produce with part of the rights of property, is granted to Nature of
individuals in virtue of a title-deed (Tapu). This possession of tenure,
public lands thus becomes under certain conditions an object (1) of
legal possession ; (2) of hereditary transmission ; and by the per-
mission of the competent authority (3) of alienation to living persons
whilst their nuda proprietas belongs to the State. This legislation
is also applicable to lauds which, separated from the public lands,
have been converted subsidiarily into vacoufs, either by the Sultans,
or by all others with the sovereign authorisation, which vacoufs must
be distinguished from properly called vacoufs.
We have classed this legislation separately because freehold
property (do minium plenum) of private persons (Mulk) is governed
by the rules of common right, that is, by the books of religious
jurisprudence (Fikh) (see Art. 2-3 of the Land Law, and the note
25).
2. The legislation which exceptionally regulates the legal
standing, both commercial and maritime, relative to private rights
(see the following note).
b. An exact translation of the text of the law inserted in the
article of M.Belin, an eminent Orientalist, "On landed property in
Mussulman countries, and especially in Turkey" (Chapter XL extract
2 So The Ottoman Land Code.
No. 9 of the year 1801, of tho Asiatic Journal, pages 180-248). As
regards the supplementary laws, modifying or relative to the Law
in question it must be observed :
Code : how 1. That the Law has been completed (a) by a regulation about
completed, the Tanus, or about the title-deeds; and (b) by other regulations
on title-deeds of vacouf property, which are classed following the
Law as legislation about priva'e right, whereas the legislation
specially relative to the administration of public property, and that
iclative to the ^administration of the Evkaf, have been classed in
the administrative law (Leg. Ott. Vol. II.).
Extension 2. That the same Law, by the promulgation of new laws relative
of rules of to the extension of the right of inheriting lands Mine ami
ance l Mevkufe, and (5) to the forced sale of lands, hypothecated or noi ,
has been essentially modified, especially in Chapters III. and IV.
of the Book 1, Art. 115, and elsewhere. The respective laws are
pointed out in the notes to the modified articles.
Rights of 3. With respect to the right of foreigners to hold immovable
aliens. property, whose Government has adhered to the Protocol in virtue
of which foreigners can be allowed to enjoy the right of holding
immovable property (No. 13, page 168 ) ; (2) The Protocol ad
hoc, Leg. Ott. Vol. L, No. 8, pages 22, 23, the Circular of the
Sublime Porte, Leg. Ott. Vol. L, No. 9, page 25.
Gift of 4. With respect to lands granted gratuitously by the Imperial
lands to Government to the colonies established in Turkey, see the special
colonists. law ad }loc Qn t}ie co i on i sa ,i on j n Turkey of foreign families (Le'g.
Ott. Vol. I., No. 6, p. 16, and especially Arts. 4, 8 and 9).
Compari- 5. Compare also the rules relative to the attributions of the
son of Administrative Councils who are to manage all that concerns the
rents of vacoufs and the revenues of the Tapou (Leg. Ott. Vol .
II., Law concerning the Vilayets).
Description 6. It must be observed, finally, that the law extending the right
of Code. to inherit designates the Code in question by the title of Code of
Landed Property, whilst the law of forests designates the same
codes by the title Rural Code.
(1.) See following, 5, 6, 9-11.
(2.) See the following notes, 5, 12, 15.
Notes. 281
(3.) See the following notes, 5, n;. IS 20.
: .llmving notes ">, 21-22,
{'>. } Srr tin- f.illowin- Art. '> and :
ling to the Unman law de ivruin divi.sione: "Qua-darn Roman
natural! jure ciiinmni:i snnt omnium, qua>dani piibik-a, qii;rdam I ' txw -
nniversitatis, qusedam millius, pleraq "ruin" (pr. Instit. 2,
1) ; and according to the Law 1 pr., Dig. 1, 8 : " snmina ix-ruin divisio
in dno^nrticulos dcdncitur: 11:1111 alia*, sunt divini juris, .ilia} Immaui.
Divini juris sunt velnti res sacra- <-t religiosas . . t ha3 atttcm res,
qua 1 litunani juris snnt aut publican sunt, aut privata? : quaj
pubiica> sunt, uullius in bonis esse creduntur,*ipsius enim nniversi-
tatis esse crednntur privatrc autem sunt, qua3 sin;^ulurum sunt.''
(0.) According to tlie Iioman laws: " Privata; res sut.t, qnaa
sineulorum " (see note 5). Compare also Arts. 537 and 544 of the
C'ivil Frencli Code.
7. The karie signifies the agglomeration of inhabitants forming Karie.
a circumscription of the lowest order, the commune ; kasaba con- Kasaba.
sists of one or more communes ; the Canton (Belin).
8. Literally. The servitude of the ground Mulk belongs to the Servitude.
proprietor; rakabe, which is used principally for persons, for living
beings, signifies the nape, the lowest part, of the neck, on which, in
animals, the yoke rests ; it is therefore the servitude of the land
which is in the duminium plenum of its proprietor.
9. See above, note (a) and notes 5, 6.
10. The word Beit-ul-mal signifies properly house of property. Meaning of
It is the name of the Mussulman administration which collects all the Beit-ul-
estates and all the portions of a vacant inheritance. It keeps also Mal *
in deposit, and it administers the property of the absent who are
joint heirs but have left no representatives with powers of attorney
(Sol vet Mussulman Estates^ page 21, note 2), as regards especially
the attributions of the Beit-ul-mal, concerning estates in general,
and in particular on estates escheated, see (1) the rules about the
Inventory of Estates (Leg. Ott. Vol. I., No. 10, page 27-40) and
(2) the Vezirial Order about Christian estates (Leg. Ott. Vol. I.,
No. 11, pages 41 to 44); see also Art. Ill of the Law.
As regards the right of succession of the pious foundation (piee
282 . The Ottoman Land Code.
Succession causa 1 ) to the vacant possession of vacouf lands held by privnic
foundation P ersons > see Art ' 3 of Na 19 '
The right of the Beit-ul-mal, which corresponds with fiscus of
Roman Roman law, has been preserved also (1) in the Roman laws :
"vacantia mortuorum bona tune ad fiscum jubemus transferri, si
nullum ex qualibet isangiiinis linea vel juris titulo legitimum
reliquerit intestatus heredem " (Lex 4, Ccd. 10, 10. Compare also
Lex 96, 1, Dig. 1, 3 ; Lex 20, 7, Dig. 5, 3 ; Lex 1, pr. Dig.
38, 9); and (2) in the Civil French Code (Arts. 33, 539, and 768>
11. See above, note (a).
Resfiscales: 12. According to Roman law, "res fiscales" that is, " loca quee
res publics. sunt in figci patr i mom - " (Lex 2, 4, Dig:. 43, 8) ; they are however
contained in the generic expression " res publican : " " si quid publici
est, ejus nihil venit, si res non in uso publico sed in patrimonio
fisci erit" (Lex 72, 1, Dig. 18, 1); and for that see the note
. below, 22.
Multezims. 13. Farmers for a term, or grantees of iltizam (Belin).
Muhassils. ^ According to M. de Hammer, this word signifies a Pasha to
whom the Porte has granted for life malikiane (in the form of Mulk),
the collection of the whole revenue arising from the taxes of a
sanjak, district of the second class (Belin).
Title- 15. For the Tapu Law and the Regulations as regards the title-
deeds of mevkufe lands, see below, note 20.
Division of lg. Accordin " to Roman law : " Res divini iuris sunt veluti res
Araz "
knfe.
Mev- gacrB et re }jgj osai , (L ex 1, or Dig. 1, 8) ; " sacra loca ea sunt qua3
publice sunt dedicata, sive in civitate sint, sive in agro " (Lex 9,
eod.).
Laws. 17. Successive ordinances of the sovereigns and following civil
laws decreed by the Ottoman Sultans (Worms, Belin).
Imperial 18. According to Roman law : " Locum publicum tune sacrum
grants. g e ,.j posse, cum princeps eum dedicavit, vel dedicandi dedit
potestatem " (Lex 9, Dig. 1, 8).
\.\es, &c. 19. Rusum or rusumat is a generic term which seems to mean,
as well as Miriyat, all the taxes except the tithes and the customs,
Notes. 283
which will correspond witli the indirect taxes of France
(Belin).
As iviranls (a) the right of possession and the various Classes of
Ties of vacouf hinds, and (A) the granting and the form of Vakf lands,
their title-deeds, compare to (.) Chapter I. (Arts. 1 to 6) of No. 19 ;
to (/>) Arts. 7 to 35 of the same Law and the other Instructions
and Regulations about the title-deeds of vakf lands (Nos. 8 and Title to
( J). As regards the titles of possession of mevkule lands, belonging lands -
to the State domain (Beit-ul-mal) which are f to be drawn up by
the financial functionaries, and of which, however, the drawing-up
has been confided to the functionaries of the general administration
of the Vacoufs, see the order on the re-organisation of the Vacoufs,
c assed in the Administrative Law, Leg. Ott. Vol. II., under the
title Administration of Yakfs.
As regards lands annexed anciently to a church or a monastery,
see Art. 122 ; finally, as regards Vakf Forests, see the Forest Law,
Leg. Ott. Vol. II., and especially Art. 19.
21. " Viarum quasdam publicaa sunt, quondam privatfe, qua3dam Highways,
vicinales. Publicas vias dicimus quas Grreci fiao-iXiKas appellant "
(Lex 22, 23, Dig. 43, 8). As regards French law, compare Art.
538 of the Civil Code.
22. According to the Roman law, " res publics " that is, " loca Common
quae publico usui destinata sunt" (Lex 2, 2-5, Dig. 43, 8) ; accord- lands,
ing to the French Civil Code, things which belong to no one, and the
use of which is common to all (Art. 714) ; but by the expression
" res publican " of Roman law are intended also such things, which are
distinguished from other things by this only, that their owner is
not a private person, but is the Government itself or a certain
commune (compare Lex 2, 4, Dig. 43, 8; Lex 17, Dig. 50,
16; Lex 72, 1, Dig. 18,1)."
23. According to Roman law, " res nullius," because " quod Waste
humani juris est, plerumque alicujus in bonis est, potest autem et lands,
nullius in bonis esse;" whilst "quod divini juris est, id nullius in
bonis est ; " that is, he is in all cases considered as " res nullius " (Lex
284 The Ottoman Land Code.
,
1 pr., Dig. 1-8). As regards French law, compare Arts. 539 and 713
of the Civil Code. 8c-e below, Arts 103 to 105.
Mute- 24. That is, " trees growing naturally on certain ground " (Art.
ferikat. 106), " mines " (Art. 107), " lands in escheat of an Ottoman subject
who has abandoned his nationality " (Art. Ill), " property of slaves "
(Art. 112), " church property " (Art. 122), "water lor drinking and
for irrigation " (Art. 124), "rice grounds " (Art. 128), " communal
lands" (Art. 130), "Chiftlik" (Art. 131), "land recovered from the
sea " (Art. 132):
Mode of 25. This -property (tesarruf) of the State lands presents in some
possession, respects affinity (1) with the " locatio perpetua agrorum civitatis
veciigalium," on the one hand ; and (2) on the other hand, with the
" usufruct " of the Koman legislation : it holds the middle place
between these two institutions, holding the dominium ususfructus
in opposition to the tiomimum proprietatis which belongs to the
State. The lands of the public domain (Mirie) of the Ottoman
Empire and those of the Koman State (agri publici) have the same
origin. According to the principles of the jus gentium of the ancients,
preserved also in the Roman law, " Quee ex hostibus capiuntur, jure
gentium statim capientium fiunt " (Lex 5, 7 ; Lex 51, 1, Dig.
41, 1), but the booty was given up to the State, and the conquered
land became also ager publicus (Lex 13, Dig. 48, 13 ; Lex 20, 1,
Dig. 49, 15). These agri publici on the one part are "qui in
perpetuam locantur ; " that is, with the condition to pay a rent in
virtue of which they could not be dispossessed, neither those to whom
they had been granted nor their heirs (Lex 9-11, Dig. 39, 4 ; com-
pare also Lex 1, Dig. 6, 3). On the other hand, these lands (Mirie),
which have become so by conquest, according to the principles of
Mussulman rights of war, are those which have been granted to
individuals as a possession (tesarruf). See note (a).
Title- 26. See end of Art, 3, and note 15.
deeds.
27. According to Roman law, " fructuarius causam proprietatis
Tilling ^ deteriorem facere non debet, meliorem facere potest" (Lex 13, 4,
imperative, -p^ ^ -^ he-cause " ususfructus est jus alienis rebus utendi, fruendi
salva rerum substantia" (Lex 1, Dig. 7, 1) ; and according to the
French Civil Code the right to enjoy or use things of which
another is' the proprietor, like the owner himself, but on condition
to preserve the substance (Art. 578) ; as sanctioning the provisions
Notes. 285
<>f Art. 9, the law permits by Art. 08 and elsewhere the termination
of the right of possession on account of non-production during three
S, in conformity in some respects to the French Civil
. and to 1 Ionian laws (Lex 1, 5, Dig. 7, 7). See
\ and note.
hair, properly a meadow where grass grows sufficiently Meadows,
high to be mowed (Belin).
29. According to Eoman law, "quidquid in fundo^ascitur, quid- Produce.
quid inde percipi potest, ipsius fructus est" (Lex 9 pr., Dig. 7, 1);
that is, as regards the usufruct of land, "all that it produces
and all that can be gathered or collected from it is part of its
produce."
30. That is, " fallow land," and according to the Eoman expression Fallow.
" terra novalis." Those lands are called fallow lands which remain
uncultivated for a year, and which the Greeks call vfos (Lex 30,
2, 50, 16).
31. See Arts. 13-14.
32. See Art. 9, and note 27.
33. According to Roman law, " a neighbour cannot go either on Trespass,
foot or on horseback through the field of another provided the
field does not owe him servitude, but every one is allowed to make
use of a public road" (Lex 11, Cod. 3, 34). There is only one case
where one is obliged to grant a passage without servitude " when Right of
the public road is destroyed or covered by the waters of a river passage,
which has overflowed its banks, the nearest proprietor must furnish
another" (Lex 14, 1, Dig. 8, 6). Compare French Civil Code,
Arts. 682-685.
34. " If the whole of a field must be a path or a road, the Right of
owner of the land subject to such conditions cannot do anything to Wa 7-
prevent the carrying out this^in any part of the field" (Lex 13, 1,
Dig. 8, 3). " But it is agreed that the owner of the dominant land
must always pass by the road which he has once taken, and he has
not the right to change it" (Lex 9, Dig. 8, 1).
As regards these servitudes, "iter, actus, via," of Roman law,
compare also the Law 1 pr., 7pr., Dig. 8,3; pr. Inst. (2, 3); and
Law 16, Dig. 8, 1. As regards, however, private roads, " quae ad
286 The Ottoman Land Code.
u
agios ducant, per quas omnibus commcare liceat," and which are
considered as " via3 publicse," compare the Law 2, 23, Dig. 43, 8.
Trespass 35. According to the Roman law : "Si quis clam aut vi agrum
unlawful, intraverit, vel fossam fecerit, interdicto quod vi aut clam tenebitur"
(Lex 9, 3, Dig. 43, 21). " Quid sit vi factum vel clam factum
videamus. Yi factum videri . . . si quis contra quam prohiberetur
fecerit, ... si quis jactu vel minimi lapilli prohibitus facere
perseveraverit facere . . . Clam facere videri, . . . eum qui celavit
adversarium ntque cum denuntiavit, si modo timuit ejus contro-
versiam aut debuit i^mere," &c. (Lex 1, 5-8, Lex. 3. 7-8, Dig.
43, 24). According to the Law 12 (eod.) " colonus et fructuarius
fructuum nomine in hoc interdictum admittantur " (compare also
Lex 3, 13-16, Dig. 43, 16 ; and as regards the utilis actio nega-
toria vel emphyteuta Lex 16, Dig. 8, 1). As regards French law,
compare Rural Code (Law of 28 Sept., 1791, Art. 17).
Partners' 36. According to Roman law, " in communione vel societate
lands. nemo compellitur invitas detineri " (Lex 5, Dig. 10, 3) ; also,
according to French law, "no one can be compelled to remain with-
out division " (Civil Code, Art. 815).
Division or 37. By Roman law, " communi dividundo judicium locum
severance, habet et in vectigali agro " ; but in opposition to the provisions of
Art. 15, " judex magis debet abstinere in regionibus divisione " (Lex
7 pr., Dig. 10, 3 ; Lex 10, Dig. 10, 2). However, compare as
regards the division of common usufruct, the Law 7, 10, Dig. 10, 3,
and the Law 13, 3, Dig. 7, 1. As regards French law, compare
the Civil Code, Art. 815, and the subsequent (1872) 597 ; the
Code of Civil Procedure, Art. 966 ; and the following, but especially
Arts. 984, 985. See also the notes 38-42.
Finality of 38. In conformity with Roman law, according to which
division. " judicem in prasdiis dividundis quod omnibus utilissimum est, vel
quod malint litigatores sequi convenit'' (Lex 21, Dig. 10, 3).
T , 39. In conformity also to the Roman law, according toaRescriptum
Imperatorium : " Si inter vos, majores annis viginti quinque, rerum
communium divisio relicta vel translata possessione finem accepit,
instaurari, mutuo bona fide terminata consensu, mini me possunt " it
(Lex 8, Cod. 8, 38); but the division may be rescinded on account
Notes. 287
of fraud i>r deceit, or if there has been " perperam sine judicio": Voidai>ilif v
" M. .1111, per fraud em vel dolum vel pi-rpcram sine judicio of division.
- divisionihus s.lct subvenire ; 4111:1 in I>OHM- tidei ju<liciis, quod
inequaliter factum ease constituent, in meliusrefonnabitur' 1 (I.
3, 38). As to tin 1 French law, according to which the claim.
l'.r rescission isadmittrd on account of violence or fraud or wrong to
the extent of inoiv than the fourth, compare Arts. 887-892.
40. Procedure to follow. Compare (1), as regards the Roman law, Procedure
H _ r . 1", :'.. Cod. 3, 37: " Communi dividundo," Cod*. 3, 38, "com- upon divi-
muiiia utriusque judicii tarn familire erciscunAse quam commune sion *
dividundo." As regards (2) the French la\v, compare the articles
mentioned in note 36 ; as regards, however, the nullity pronounced
in Art. 17, see Art. 36, of which it is the consequence.
41. Veli means the natural guardian, he who is invested with Natural
this qualification by right of blood relationship; this right belongs guardian.
only to the father and grandfather ; the mother is not veli, but the
will of the father can appoint her guardian.
Vesi is the guardian named by will.
Kaim is the guardian appointed by the authority when there Legal
is neither veli nor vesi. (Tornauw, ' Mussulman Law,' page 290.) guardian.
42. As regards Christian minors, see the Vezirial order " On the Infants,
Inventory of Christian Estates," Leg. Ott. Vol. I., No. 11, p. 41 ; as lunatics >
regards the provisions of Roman law relative (1) to minors in case C<
of division, compare the Law 7 pr., Dig. 27, 9, and the Law 17,
Cod. 5, 71 : (2) to the mad (furiosi) compare the Law 2, 3, Inst.
1, 24 ; Law 7 pr., 3 ; 10, 1, 13, 17, Dig. 27, 10 : and (3) to
idiots (fatui), the Law 2, Dig. 3, 1 ; Law 21, Dig. 42, 5. As
regards the provisions of the French law in case of the division of
property belonging to minors, see Arts. 465, 466, and 817 of the
Civil Code; and Arts. 968, 984 of the Code of Civil Procedure.
As regards those of full asre who are in an habitual state of
imbecility, insanity, or mania, and who are assimilated to minors,
see Arts. 489 and 509 of the Civil Code.
43. Land where the Pernar grows (in Albanian toske, prinari; in Pernallik.
Greek, prinari or priuos), oak, holm oak, a small kind of green oak,
Quercus ilex of Linnaeus ; in Italian ilice, c-lcina, elec, lecio. There
288 The Ottoman Land Code.
is also another kind of pernar that is, the oak kermes, the
Quercus coccifera (Bclin).
Right to 44. To decide according to Eoman law what the usufructuary of
cut wood. i an d ma y take from a wood, which is part of it, it must be ascer-
tained whether it is a copse (sylva casdua) or a pasture (sylva
pascua). According to the Law 30, Dig. 50, 16, sylva csedua is a
wood where one cuts down as wanted ; which, after having been
cut even with the ground, reproduces itself from the stem or the
roots, and pascua sylva is a wood destined to be food for cattle.
The usufructuary may then cut down the underwood and the reeds,
and even sell them (Lex 9, 7, Dig. 7, 1), and especially " may take
props and branches of trees ; but in a wood, not a copse, may take
stakes to prop up his vines, provided he does not injure the land "
(Lex 10, eod.). But if the trees are grown-up forest trees, he may
not cut 'them down : " sed si'grandes arbores essent, non posse eas
csedere " (Lex 11, eod.). As regards the usufruct of woods, according
to French law, compare Arts. 590-594 and 1403 of the Civil Code ;
see also the following note 53, Art. 28 modified, and Art. 30.
45. In the text of M. Belin there is the word " only," which we
have altered to the word " also." (See the, modern Greek translation
inserted in the Ottoman Codes of M. D. Nicolaides, page 434.)
Rights of 46. " In re communi neminem dominorum jure facere invito
partner. altero posse " (Lex 28-29 ; Dig. 10, 3). Compare also the Law 13, 3,
Dig. 43, 24, according to which "si ex sociis communis fundi unus
arbores succiderit, socius cum eo hoc interdicto " (that is, " quod vi
aut clam") "experiri potest, cum ei competat, cujus interest."
(See Arts. 25 and 35, note 68.)
Limitation 47. According to the Roman law, the time prescribed by
of actions. Justinian to lose the usufruct by not availing of it or not profiting
by it for ten years between persons present and twenty years
between absent persons, in virtue of the Law 16, Cod. 3, 33,
according to which the usufruct cannot be lost unless they oppose
the usufructuary, on grounds with which the owner himself, absent
or present, might be repulsed who claimed his property. As to the
French law, compare the Arts. 2219-2261 and Arts. 2265-2270 ;
see, however, Art. 78.
48. That is, the less value caused by the use that may have
Notes. 289
made of the land, the deterioration that it may have suff. red Wear and
(Belin) as regards the buildings, or plantations of vines, and trees tear *
arbitrarily grown, compare hereafter Art. 35.
4;i. Contrary to Koman law, by which the usufructuary of any No claim
land whatsoever interfered with in his occupation or plundered for esne
violently (dejectus) lias an action to recover all the produce which j^inst
has been collected (Lex 60, Dig. 7, 1). Everything which is illegal
part of the usufruct must be given back to the usufructuary, who occupier,
lias gained his suit (Lex 5, 4). As regards Frencn law, compare
Arts. 548-550, 597, and 613-614 of the Civil Gode.
50. With respect to this jus tollendi, compare the Laws
37, 38, Dig. 6, 1 ; and Art. 555 of the French Civil Code. (See
Art. 35.)
51. In conformity with the precept of the Eoman law, " Nemo Estoppel of
sibi ipse causam possessions mutare potest " ; and of French law, lessee or
according to which those who hold for another can never obtain by borrower -
prescription, however great the lapse of time. Compare Koman
law, Lex 33, 1, Dig. 41, 3; Lex 2, ult., Dh. 41, 4 ; Lex 1,
Dig. 41, 6 ; Lex 3, 19, 20 ; Lex 9, Dig. 41, 2 ; Lex 1, 6, 2, 3,
Di-. 43, 26 ; Lex 23, Cod. 4, 65 ; Lex 5, Cod. 7, 32 ; also French
Liw, Civil Code, Arts. 2236-2240.
See about prescription acquisitive of the possession (tesaruf) of
State lauds, Arts. 20 and 78.
52. Kishlak, place for encampment, commonage, and pasture ( f Yaylak ;
beasts during winter ; yaylak, the opposite of the preceding, place of Kl *hlak.
encampment and feeding for animals during summer (Belin).
53. According to the Eoman laws, the usufructuary may Conversion
improve the thing (see note 27), but on condition that he shall illegal,
not change its form ; this is the reason why, " if the land is a
simple pleasure-ground where there are groves, walks, or alleys
shaded by barren trees, he mtist not destroy them to replace them
by fruit trees, or substitute pleasure gardens by kitchen gardens
which produce revenue " (Lex 13, 4, Dig. 7, 1). Compare French
Civil Code, Art. 578.
54. By virtue of the law of accession, and this because " arborem Things
in fundo continentur, non est separatum corpus a fundo " (Lex planted.
U
2 QO
The Ottoman Land Code.
40, Dig. 19, 1). Compare also, on the right of accession, Arts. 551,
552 and 555 of the French Civil Code.
55. See note 50. As to joint owners, see Art. 26.
Palamud. 56. In Greek /SaXavos ; in French gland, vallonee (valonea) ; in
Arabic bellout ; in Turkish pilit and palamout.
Gurgen. 57. The yoke elm, Carpinus betulus (Belin).
58. Oak, Quercus robur (Belin).
59. See note 54, find the note following.
Forests. 60. According; to the Forest law, dated "11. Sheval, 1286" (1
January, 1870), the forests of the Ottoman Empire are divided into
four categories : (1) The forests belonging to the State, (2) those
depending on the Evkaf, (3) the communal forests or Baltalyks,
(4) the woods and forests of private individuals. All that concerns
the woods and forests of the last category having been provided for
in the Ottoman Rural Code (see note & in fine), the provisions
of the present regulations are not applicable (Art. 1 of the regula-
tions in question, classed in the .Administrative law, Leg. Ott. Vol.
II.). See also the law on the extension of the right of Inheritance,
Art. 5, in virtue of which the provisions of the Law are kept in
force). Nevertheless, these provisions relative to forests, miriye,
held by private persons have been in part repealed, in part
modified, by an Imperial order annulling the principle of the right
of accession legalised by Art. 29 of the Code ; herewith the official
note inserted in the said regulations.
Repeal of "According to the Ottoman Rural Code, trees growing naturally
injurious on g tate i an( j s ( araz j m i,^) belong to the State, and the holder of
ms> the ground must indemnify it for the value of the wood which he
gets. This regulation being prejudicial to the owners of the lands,
and causing depreciation of agricultural property, all the articles of
the Rural Code which created these rights of the State on the said
trees have been repealed by Imperial Ordinance dated 16. Sheval,
1286 (6/18 January, 1870)."
61. See Arts. 25, 26, and 28.
62. Mubah, abandoned to the first occupier (Belin), consequently
viva derelicta. See Arts. 103-105.
Notes. 291
63. The provisions of Art. MO, that " the standing value of the Right to
- cut down shall Ix; paid, for account of the Miri, that is the tn "ber.
State," appears to have beoii modi tied in consequence of the abolition
of the right of the State to these trees. See note 60.
64. Si-o Art. _">, about the planting of vines or fruit trees. Xew build-
:'diii'jc to the Roman law the usufructuary could ~3ot even erect * n & s -
a ne^v building unless it were necessary for storing the fruits of the
crop (Lex 13, 6, Dig. 7, 1). See the following article.
Co. See the preceding note.
66. Place of the mill-stone, a space of ground. Area, or circular Threshing-
space where the grain is piled up in stacks after the harvest ; some- floors,
times threshing the corn is done there. The Khirmen yeri is
always barren ground (Ami Boue and Belin, Is'o. 334, p. 144).
67. Vines planted on the ground of another become part of the CKvnership
ground, and, if they have been planted by a holder of bad faith, he * vines -
cannot even get back the expenses he has gone to in this respect
(Lex 1, Cod. de rei vindicatione in fragm. ; Cod. Gregor.). Respect-
ing the jus tollendi of the owner, see also Art. 22 and note 50.
68. If an individual has built a house on ground belonging to Rights of
him and to you, right requires that it should be common to both joint
(Lex 16, Cod. 3, 32) ; but if he who has built was acting in good owners -
faith, the claiming a part of the house is allowable on condition of
paying half the expenses (Lex 16, eod.). See Arts. 15-19. In case
the buildings or plantations have been made, not on the whole of
the joint land, but on certain parts, they shall make a division (see
the Art. in fine). In the case of grafts, see Art. 20.
69. In the Greek translation of the code in question the text of Erection of
3 is translated as follows: buildings,
" If the value of these buildings, once pulled down, and of these &C- ' ? l ', n
trees, rooted from the soil, exceeds that of the land which is covered } an( j.
by them, the individual who proves his right to the soil will
receive its just value, and the buildings and trees in questi- n a ill
remain in the hands of their owner. But if the ground is valued at
more than the buildings and the trees, .then the value of the<e
H things will be calculated as if they were pulled down or n oted up,
and the owner will be compensated according to this value, whilst
U '1
29 2 The Ottoman Land Code.
. , ^ , ^
the trees and buildings will become the property of the person
who has proved his right to the lan<i." (See the Ottoman Codes
by M. D. Nicolaides, page 438.) As regards that the claimant
mv.st be ready to restore to the owner who is acting in good faith,
under pain of forfeiture of his claim according to Roman law, it is
necessary to compare the Law 38, Dig. 6, 1, of which here is the
translation : "You have built or sown on ground which you had
imprudently bought from some one to whom it did not belong ;
your seller hasc been evicted subsequently by the true owner. A
just judge will act, in this respect according to the persons and
circumstances. Let us suppose that the owner had done the same
thing that you have, he must, to enter into possession of his land,
take into account your expenses, but only so far as you have
improved his land ; but if you have spent more than his land is
worth, he will pay you only your expenses. Let us further admit
that he is poor, then it will suffice that he allow you to take away
all that you can take away, provided also that his land does not-
become of less value than it had before the building which you
have erected." As regards French law, you must compare the
Art, 555 in fine of the Civil C >de, of which this is the text : " If
the plantations, buildings, and works have been done by a third
evicted party, who has not been condemned to the restitution of the
profit, on account of his good faitb, the owner cannot demand the
destroying the works, plantations, or buildings, but he will have
the option of paying the value of the materials and the wages of the
workmen, or to pay an amount equal to the increased value of the
ground."
However, according to Eoman law, it has been decided also that
if the proprietor is ready to give to the owner the sum which this
latter coutd realise by taking away all that he had added to the
land, he would be allowed to do it ; for one must not lend a hand
to the malignity of landowners. (Compare the said Law 38,
Dig. 6, 1.)
70. See, as regards the communio possessionis, Arts. 15-19, 2,
35, and 41-43.
Alienation 71. " Firagh," abandon. This word is often joined in the hudjets
by sale, &c. to the word teslim, " consignation." It corresponds exactly (says
M. Belin) to the "traditio" of Koman law; but we can say that it
Notes. 293
lier to the term "alienatio, M which signifies in Alienation
:il an act by which a person tran.-ters to another a right "***" "^
..liini, ami that because the "traciitio" maybe considered
rtain form of tl -ent relative to the transfer of the
property, but not in all cases like the agreement itself. The in-
"f the expression of 10, Instir. -, 1, to which perhaps
in alludes, is expressly acki: u. the Law 31 pr.,
: ling to wliich "nunquam nuda tra-litio trans:ert
dominium, sed ita si vemiitio aut aliqua justa caasa prsecesserit,
propter quam traditio sequeretur." The sense then of the term
i" consists in the alienation between living persons by a
contract of sale, exchange, or gratuitously, not of the property of
the land, which belongs to the State (note (a), Art. 25), but of the
right of enjoying it ('dominium utile " or " dominium ususfructus ")
which belongs to the possessor, and which is nothing more than
jus in re alieua ; that is to say, a right to the property of another
for obtaining which the consent of the contracting parties and the
permission of the competent authority are sufficient (Arts. 36-37).
See note 76. In the Greek edition of the Ottoman Codes this
word has been translated by the term irapax&prjo-is that is cession
(page 438), a term which M. Belin also has employed in the
rubric of Book I. As regards the term " sale," it must be observed
that it is improper on account of the act of donation, which is
contained in the term " firagh." However, in the Roman laws the
terms " alieuatio " and " venuitio " are identified : " emptionis verbo
omuem alienationem complexa videretur" (Lex 29, 1, Dig. 40, 7.
Compare also Law 55, Dig. 18, 1 ; Lex 55, Dig. 44, 7 ; Lex 109,
Dig. 50, 16).
72. See Art. 55, modified and continued.
73. See Art. 59, modified and following.
74. According to the Greek translation : " In the same way for Exchange,
the exchange of lands, the permission of the functionary ad hoc is
indispensable " ( the Ottoman Codes, page 438). As regards the
fees to be paid in the case of Exchange, compare Art. 7 of the
Tapu Law.
75. " It is certain that consent must have place in sales and
purchases ; besides, when the parties are not agreed, either on the
294 The Ottoman Land Code.
. : 1 ,
Consensus sale, the price, or any other point the purchase is imperfect "
'^rtie f ^ LeX 9> Dig ' 18 ' 1 ^' A1SO> " SlVe venditio ' sive donatio > sive
quselibet alia causa contrahendi fuit, nisi animus utrinsque consentit
perduci ad effectual id quod inchoatur non potest " (Lex 55, Dig.
45, 1). Also, especially as regards donations, " non potest liberalitas
nolenti adquiri " liberality cannot be acquired against the will of
the giver (Lex 19, 2, Dig. 39, 5 ; and Lex 10, eod.). About the
consent of the buyer or the " copermuter " in French law, compare
Arts. 1108-1112, 1582-1583, and 1703. As regards donation?
between living persons, they do not bind the donor, and have no
effect but from the day that they have been accepted in express
terms (Art. 932 of the Civil Code). Compare also Arts. 893, 894,
and 931-966 of the same Code. With regard to the procedure to be
followed and the fees of registration and other expenses for drawing
out the title-deeds, compare the Tapu Law, Arts. 1-4, 6, 7, 9, 10,
and 14.
Delivery of 76. Consequently the delivery of the land into the power of the
possession k U y er d oes no t appear to be indispensable for acquiring the right of
ess< possesbion by this person as regards the seller, and this in ac-
cordance to French law, according to which "the sale is perfect
between the parties, and the property belongs by right to the buyer
as regards the seller as soon as they have agreed on the thing, and
the price, although the thing has not yet been delivered nor the
price paid " (Art. 1583 of the Civil Code). However, as regards
third parties, the law of the 23rd March, 1855, has re-established
the necessity of the transcription at the office of Hypothecation of
all acts between living persons relative to the transfer of immov-
able property or real rights susceptible of being hypothecated, a
system which was in force before the Code. Compare Art. 1 of the
said law, and Art. 3, according to which until the transcription, the
rights resulting from the acts (already mentioned) cannot be
opposed to third parties who have claims on the immovable, and
who have maintained them by conforming to the laws. As regards
Roman law, notorious is the rule, " traditionibus dominia rerum, non
nudis pactis transferantur " (Lex 20, Cod. 2, 3) ; that is, property
by delivery can be transferred, and not by naked agreements. How-
ever, we must observe that the object of the transmission in
question, is not the property, but the jus in re aliena; but for
Notes. 295
obtaining such a riiiht on tlie property of others, the delivery was
not in all cases indispensable even in Human law.
77. In conformity to French law, according to which if the buyer Purchase-
lias not paid the price, the seller can demand the cancelling of the money.
sale (Art. U;.~> 1 <>f the Civil Code; compare also Art. Hi;Vi-l <;.-,(;,
and the law of 23rd March, 1855, on transcription). As regards
Roman law, "a suit to cancel a sale is not granted to annul a
perfect sale, but only to pay the price of the sale, unless it has been
specially agreed in the contract" (Lex 6, Cod. 4,* 49). Also, "if
you have really sold and not donationis causayour vines " (says an
imperial rescript), " and that the price of them has not been paid, you
have an action to sue for the payment but not the return of the
vines, which you have delivered " (Lex 7, Cod. 4, 38). Compare
also Lex 3, Cod. 4, 44; Lex 7, Cod.; but if the sale has been
stipulated with the binding clause, (lex commissoria) that is, by
which the seller and the buyer agree that the sale shall be cancelled
if the price is not paid within a fixed time in this case the cancelling
can be demanded by the seller. " If a piece of land has been sold
with the binding clause, it is better to decide that the sale shall be
cancelled upon condition, than to say it was conditional." Compare
generally chapter III. of Book XVIII. Dig. de lege commissoria ;
compare also Art. 1656 of the French Civil Code.
78. However, the definitive alienation can be annulled or decided Voidability
in the following cases : A. It can be annulled (a) in favour of the of sale,
seller on account of force (see Art. 113) ; (&) in case it has been
stipulated on conditions considered illegal by common law (the
religious law) (see Art. 114) ; (c) in case of legal incapacity of one of
the contracting parties, that is to say, in the alienation or acquisition
of lands by minors, insane, o'r imbeciles (see Arts, 50, 51) ; or (f?) in
case of the alienation of lands by their guardians or trustees except
by judicial permission (see Arts. 52, 53); (e) in the case of aliena-
tion by a third party or a joint holder without an order ad hoc from
the owner (see Art. 43), the annulment can be allowed (f) in favour
of third parties in consequence of an action claiming the land from
the buyer, founded on a certain right of preference (jus TT-pori/^o-eoo?)
sanctioned bylaw : that is, in favour (L) of the joint holder (see Art.
41) or the joint holders (see Art. 42) (2) with the proprietor of the
trees or buildings on the land possessed by others (see Art. 44) ;
296 The Ottoman Land Code.
_ ,_ ^
(3) of the inhabitant of the same village (see Art. 45), but of the
neighbour as such (Art. 46). B. The alienation may be annulled or
decided (a) on account of deceit or fraud as to actionable defects (see
Art. 119) ; (6) in the case of repurchase (pactum de retrovendcndo)
that is, of a sale made by the debtor to his creditor in exchange or
as security for his debt on condition of claiming the restitution
of the land after the payment (see Arts 116-118 modified) ;
(c) in case of non=payment of the price (see preceding Art. 38).
As regards donations " mortis causa," see Arts. 120, 121. As regards
specially donations to foreign subjects, compare Arts. 4, 5 of the
law granting to foreigners the right of holding landed property in
the Ottoman Empire.
Second sale 79. Because, after a first, valid, and definitive sale, a second sale
void, cannot but be considered as a sale of land belonging to another
person (see Art. 43). As regards the Eoman law, compare the Law
19, 9, Dig. 19, 2; compare, however, the Laws 9, 4, Dig. 6, 2,
and 31, 2, Dig. 19, 1. As regards French law, see Arts. 1583 and
1599, compared with the law on transcription of acts transferring
property or real rights mentioned in Note 76.
Unauthor- 80. In accordance with the French Civil Code, according to
bed deal- wn ich " the sale of a thing belonging to another is void, it can give
rise to a claim of damages when the buyer has ignored that tl.e
thing belonged to another '' (Art. 1599). Nevertheless, according
to Roman law, "it is certain that one can alienate the things of
another, because there is a buying and selling; but in this ease
the buyer may be deprived of the thing sold " (Lex 28, Dig. 18, 1),
probably because the delivery made in virtue of such a sale, valid
as a bare agreement, does not transmit to the buyer a property
which the seller did not possess.
As regards the confirmation of the sale by the owner, compare
the Law 38, 1, Dig. 24, 1. See, however, the Law 9, 2, Dig.
39, 5 ; Lex 3, Cod. 3 y 32 ; Lex 4, Cod. 4, 51 ; Lex 12, 4, Dig. 46, 3 ;
Lex 60, Dig. 50, 17. As regards the case of an arbitrary sale by a
joint owner, the buyer evicted from the portion of the land
belonging to the co-proprietor had a right of action for damages
against the seller.
"If, being older than 25 years" (says a rescript of the Emperors <
Diocletian and Maximianus), " you have sold as your own property
Notes. 297
lands which were joint property with your brothers, to an Unauthnr-
individual who was ignorant of it, although you may have made ) zed de . a1 '
no document, or that you have not specially agreed to anything in W1
this IT ; purchaser having been evicted from a part of the
-Id, you owe him a compensation relative to the interest he
had not t<> be BO" (Lex liu., de communium rerum alienatione, C"d.
4, 52). As to the case of tacit acknowledgment of the sale by the
joint proprietor, the Law 12, Dig. 21, 2, gives an example: "An
heir appointed to one-half has sold all the hereditary property, and
his joint-heirs have received the price of it. The purchasers have
all been evicted. It was asked whether tne joint heirs of the
seller could be sued for the purchase. I replied " (says the Juris-
consult Scsevola) " that, if the joint heirs had been present and did
not dissent (si prasentes adfuerunt nee dissenserunt), each of them
onsidered to have so'd his portion." As regards acts
recognizing expressly or tacitly a sale null by French law, compare
Arts. 1337-1340, 19b8, and 1998 of the Civil Code. Compare at the
end the Tapu Law.
81. See notes 78 and 83.
82. See notes 78 and 83.
83. Besides the right of preference (jus TrpoTip'jo-fcos} about Xo pre-
a voluntary sale made by the owner (Arts. 41-42, 44, 45, and eruption by
note 78), there is also another category of right of preference for the a J ac ^ n
acquisition of lat d in the case of death of the owner without legiti-
mate heirs; that is, thejusprotimeseos of parents and other persons,
about which compare Art. 59 modified. In the Roman law,
except in the case of a cliuse of a right of conventional preference,
such a jus Trport/Liiio-ea)? is also sanctioned by virtue of a dispo-
sition of the law in favour of the proi rietor in the case of a sale
of the right of emphyteusis, and in favour of other persons in
different other cases, regarding whom compare the Law 3, Cod. 4,
66, 16 ; Dig. 42, 5, 60 ; Dig. 2, 14 ; 1 Cod. 11, 6 ; 14 Cod. 4, 38.
As regards the right of preference of the neighbour to land (mulk)
according to the common Ottoman law, compare above, Art. 2,
page 2. The rights of preference of the Ottoman rights corre-
spond exactly to various kinds of Naiierrechts (or Re;ractsrechts,
Einstandesrechts) of German law. According to the particular
legislation which governs immovable property in the various States
of the German Empire, it is established in favour of the joint
298 The Ottoman Land Code.
^
owner, of the neighbour, of the parish, or of the inhabitant of the
same commune, of the near relation, &c., a right, in virtue of
which they can attack the sale made by their joint proprietor,
neighbour, &c., with a third party, and after the delivery of the
land take it from the hands of the buyer on paying the price.
Thus then (1) the jus Trport/^o-ecos- of the joint owner corresponds
to "retractus ex jure condominii " (Ketrakt auf Grund des Mit-
eigenthums), withdrawal on account of joint property ; (2) the
right of the inhabitant of the same commune corresponds to
"retractus ex jure incolatus" (Marklosung Biirgerretrakt) ; (3) the
right of the neighbour which is in force only as regards Mulks
corresponds to "retractus ex jure vicinatus " (Nachbarlosung,
Nachbarrecht) of German law on the one hand, and the Greco-
Koman law on the other ; (4) the right of the parents can in some
way correspond to the Erblosung of the German law. But we must
observe that the prerogative rights of an ancient epoch have been
abolished in certain States on account of the obstacle which they
opposed to the security of transactions concerning immovable
property.
84. See below, Art. 131.
Mistake as 85. According to Eoman law, if an individual has sold a field
to area. w hich he declared contained 18 acres (jugera), stipulating a price
for each measured acre, he must pay for twenty if there be twenty
(Lex 40, 2, Dig. 18, 1). But if the measure of the field be less,
the seller is bound as to the number of the acres ; for, since there is
a deficit in the measure, it is not possible to estimate the quality of
the land which is missing. But not on-ly can one act against the
seller where the measure of the whole field is short, but one can
also sue him for the parts, as, for example, if it has been said that
there were so many acres of vines or of olive trees, and there is less
of them. That is why, in this case, as regards the quality of the
ground, they will estimate what is missing according to what exists
(Lex 4, 1, Dig. 19, 1).
Thus then, as regards the estimation of the deficit in the measure,
they examine the price at which each declared acre was sold, and
they give the same price to each of those that are missing (Lex 69,
6, Dig, 21, 2).
(B.) According to the French Civil Code, " The seller is bound to 4,
deliver the extent such as is mentioned in the contract" (Art.
Notes. 299
. Thus, " if the sale of an immovable has been made with Mistake as.
an indication of its measurement at so much the measure, the seller to aiea
is obliged to deliver to the buyer, if he require it, the quantity
indicated in the contract ; and if he cannot do it, or if the buyer
does not demand it, the seller is obliged to suffer a prop -rtional
diminution of the price " (Art. 1617) ; " but if, on the contrary,
there is a larger extent than that stated in the contract, the buyer
has the choice of giving the supplement of the price, or to break
the contract if the excess is one-twentieth above the declared
contents " (Art. 1618).
86. A. According to Ecman law in this case, the seller not only
cannot retain what is found to be more than he had declared, but
he is also oUiged to guarantee it to the buyer in case of eviction
from that part. He who in selling a piece of land of 100 acres
has given boundaries more extended to the buyer (fines multo
ampliua emptori demonstraverat), if the purchaser were evicted
from part of these limits, he must indemnify him for it accord-
ing to the value of that part, even when the hundred acres which
he may have purchased remained in his hands (Lex 45, Dig. 21, 2 ;
compare also Lex 38 pr., Dig. 19, 1). B. According to the French
Civil Code, except in the case mentioned in the preceding note, in
all the other cases whether the sale be for a certain and limited
quantity, whether it have for its object separate and distinct pro-
perties, whether it commences by the measure, or by the designa-
tion of the object sold followed by the measure, the naming this
measure gives no cause for any increase of price in favour of the
seller for the excess of measure, nor in favour of the purchaser for
any diminution of the price for the de6cient measure, except
inasmuch as the difference $>i the real measure from that mentioned
in the contract is one-twentieth more or less, having regard to the
value of the totality of the objects sold, if there be no contrary
stipulation (Art. 1619). However, in this case of augmentation of
price "the purchaser ha the choice of withdrawing from the
contract or of paying the supplementary price, and this with
interest if he has kept the immovable" (Art. 1620). With regard Actions as
to actions to this effect which " must be taken in one year from the to mistake
date of the contract under pain of forfeiture," see Art. 1622 (com- m area '
pare also Art. 1621). As regards the sale of two grounds by the
same contract for one and the same price, compare, as regards Roman
300 The Ottoman Land Code.
Law, the Law 42, Dig. 19, I ; and as regards French law. Art. 1623
of the Civil Code.
Timber, 87. " Ratio enim non permittit ut alterius arbor esse intelligatur,
quani cujus in fundum radices egisset" ( 31, Inst. 2, 1; French
Civil Code, Art. 551 ; and note 54 and Art. 28). Thus " fundi
nihil est, nisi quod terra se tenet " nothing forms part of a piece of
land but what holds to the piece of land (Lex 17 pr., Dig. 19, 1) ;
it is thus that worked timber (ligna) belongs to the seller because
it docs not form' part of the ground, although it may have been
worked to be employed in it (Lex 17, 2, eod.). The props for the
vine do not form part of it until they are used (Lex 17, 11, eod.).
Nevertheless, it is asked whether, in case the seller and buyer have
contracted when the buyer had not seen the land, the object of
their contract, the seller is bound to deliver to him the trees which
have been blown down since then by a hurricane.
It is replied that he was not obliged to do it, the buyer not
having purchased them, since they had ceased to form part of the
land before the contract; but if the buyer was ignorant of the trees
having been blown down, and that the seller knew it, but had not
informc-d him of it, there was reason to estimate whether the thing
was part of the sale (Lex 9, Dig. 18, 6). According to the French
Code, the obligation to deliver the thing includes its accessories,
and everything destined to its perpetual use (Art. 1615). Thus,
" the thing must be delivered in the state in which it was at the
moment of the sale." From that day all the profit belongs to the
buyer (Art. 1614).
Ownership 88. " Quintus Mucius scribit : dominus fundi de pra^dio arbores
of trees. s tantes vendiderat et pro his rebus pecuniam accepit et tradere
nolebat ; emptor quajrebat, quid se face^e opporteret, et verebatur,
ne hse arbores ejus non videretur factffi. Pomponius: arborum,
qua3 in fundo coiitinentur, non est separatum corpus a fundo et
ideo ut domiuus suas specialiter arbores vindicare emptor non
poterit; sed exempto habet actionem"(Lex 40, Dig. 19, 1). As
for what is relative: (1) Trees become mulk; that is, entire
property of the owner of the laud (compare Arts. 25, 26, 29).
(2) As regards the isale of these, Art. 49 ; and (3) as regards the
right of preference to land to be sold, Art. 44.
89. See the preceding note in fine.
90. According to the Roman law, "pupillus vendendo sine
Notes. 301
tutoris anctoritate non obligator" (Lex 5, 1, 1>L'. 2U, 8), "quia Sale, &c.,
sinr tutoris uuctoritate nihil alienare jxjtest "(U.'\ pp., <j.id.). Also j'. v 1 " t:lllt -.
lunatics,
minors in general cannot, without the consent of their trustees, &c
conclude any au'reom>'nt of sale (Lex 3, Cod. 2, 22). As regards
insane and imbecile: " furiosura sive stipuletur, sive promittaf,
nihil agere natura manilV'stum est" (Lex 1, 12, Dig. 44, 7),
because " furiosus nullum ne<zotium gerere potest, quia non
iutellunt quid agit" (8 Inst. 3, 19). Compare also Lex 5, Dig. 50,
17; Lex 1, 3 ; Lex 18, 1, Dig. 41, 2; Lex 1,^ 12, Dig. 47, 7.
According to French law, "the incapable of Contracting are minors
and the interdicted" (Civil Code, Arts. 1124, 1125); that is, those
who, on account of their habitual state of imbeciliry, of insanity
and mania, are judicially prohibited from administrating their
property or the exercise of their rights (Arts. 489, 512). As to
those who are not declared such by a Court, see Arts. 503-504 of
the same code. The minor emancipated also cannot sell nor alienate
his immovables without conforming to the prescribed forms for
minors' not emancipated (Art. 484). As regards specially the
spendthrifts, according to the French Civil Code, they may be
prohibited from alienating their property without the assistance of
a council named by the Court (Arts. 513, 515). According to
.Roman law, " prodigo interdicitur bonorum suorum administrate,''
and thus " solent prretores vel presides, si talem hominem
invenerint, qui neque tempus neque finem expensarum haber, sed
bona sua dilacerando et dissipan.lo profudit, curatorem ei dare
exemplo furiosi" (Lex 1 pr., Dig. 27, 10; compare also Lex
16, 1-3).
91. " Pu pill us sine tutoris auctoritate non obligatur nee in Disabilities
emendo, nisi locupk tior factus est " (Lex 5, 1, Dig. 26, 8). of infants.
Without the authority of their guardians, those who have not
attained the age of puberty cannot buy, because " in his causis ex
quibus mutua3 obligationes nascuntur, in emptionibus,venditionibus,
locationibus, etc. Si tutoris auctoritas non interveniat, ipsi quidem
qui cum his coutrahuut obligantur, at invicem pupilli non
obligantur" (pr. Inst. 1, 24). Compare also 9, 10, lust. 10, 19.
As regards the insane and imbecile, see the preceding uote. See
also the same note as regards minors according to the French Code.
However, the emancipated minor may do all the acts which are not
purely administrative (Art. 481). " As legards obligations which
302
The Ottoman Land Code.
Powers of
guardians,
&C.
Disability
of guar-
dian or
trustee.
he may have contracted by purchases or otherwise, they may be
diminished if excessive " (Art. 484).
92. But independently of the purchase of lands, the guardians
may also lend the money of the minors at an exceptional interest, 15
per cent, per annum. (See the Imperial Firman on the uniform rate
of interest and the modified law, Le'g. Ott. Vol. I., Nos. 12, 13,
pages 46 and 48, Art. 1.) According to Roman law, the guardian
or trustee must deposit the money of the minor for the purchase of im-
movables : " Si pecunia sit, quse deponi possit, curare, ut deponatur
ad praidiorum comparationem. " (Lex 3, 2, Dig. 26, 7). " Ita autem
deposition! pecuniarum locus est, si ea summa corradi, id est colligi
possit, ut comparari ager possit" (Lex 5 pr., eod.), and only, -if this
become impracticable, he must lend it at interest (Lex 24, Cod. 5, 37 ;
Lex 7, 3 ; Lex 8 ; Lex 13, 1 ; Lex 58, 1, 3, Dig. 26, 7 ; Lex 3,
Cod. 5, 56). Comp., however, Novelle 72, cap. 4 (d), but "si post de-
positionem pecunige comparare prtedia tutores neglexerunt, incipient
in usuras conveniri " (Lex 7, 3, 7, 10 ; Lex 58, 3, Dig. 26, 7).
In case the guardian or the trustee has bought in his name
land with the money of the minor, this minor has an action to
recover the land, "si tutor vel curator pecunia ejus, cujus
negotia administrat, prgedia in nomen suum emerit, utilis actio ei,
cujus pecunia fuit, datur ad rem vindicandam " (Lex 2, Dig. 26, 9).
According to the French Civil Code, " The family council will
fix positively the amount at which will commence for the guardian
the obligation to employ the excess of the revenue over and above
the annual expenditure of the minor: this employment must be
made within the delay of six months, after which the guardian will
be debtor for the interest in case of non-employment " (Art. 455 ;
see also Art. 456).
93. According to Roman law, " the guardian may not buy the
things of his ward, which is applicable also to other similar persons ;
that is, to trustees, attorneys, and other agents of the affairs of
others" (Lex. 34, 7, Dig. 18, 1) ; and<this because in general " it
is not allowed that he who administers a thing should buy it,
neither himself nor by an intermediary, under pain of losing the
thing purchased and paying four times the value of it (Lex 4(>,
Dig. 18, 1), of which see the entire text in the note of Art. 88.
And particularly the guardian may not buy, (a) nor by the medium
of another person (Lex 5, 3, eod.); (6) nor by the medium ul a
Notes. 303
11 who is umler him ( fi, eod.) ; (') nor through his wife (Lex 5, Trustee
. --r, with the authorisation <>f his joint guardian f.innot buy
;//./- and pal;un (I. Hid 1, 'l %. W, ), r ^
in c:w of :i Mile by auction (Lex 1', g 1,4; Lex. 5, Cod. 4, S-.imlford).
it that only if the sale takes place according to law (see the
According to French law, "the guardian can
neither buy the lauds of the minor nor farm them, unless the family
council lias authorised the second guardian to let them to him"
(Art. 450 of the Civil Code). But the g-'ardian nt only may not
buy the lands of the minor, but also may not sell them without
be.ng authorised, either by the family counciFSccording to French
law, or by the judicial authority according to Roman law, as is seen
in the following note.
94. A. Roman law. Any alienation of the lands of a minor by No sale of
his guardian or trustee cannot be valid without the permission of } an( * f
the judicial authority, granted onlyiii case of necessity, (a) In the W j t jj 0ut
origin judicial permission was necessary only for the alienation of leave of
the preedia rustica or suburbana : " imperatoris Seven oratione Court,
prohibiti sunt tutores et curatores pradia rustica vel suburbana
distrahere " (Lex 1, Dig. 27, 9) ; but this authorisation was to be
granted only for the payment of a debt of the minor, who " ex rebus
ceteris non possit exsolvi" (Lex 2, eod.). However, the prohi-
bition has been extended (b) by the law of real rights, " si jus
eptyvTevTiKbv vel enftciTevTiKov habeat pupillus videamus an distrahi
hoc a tutoribus possit : et magis est non posse, quarnvis jus praedit
potius sit " (Lex 3, 4, eod.) ; compare also the Laws 3, 6, and
4, 5 eod. And at the last (c) by the Imperial legislation on all
kinds of property. The permission then of the judicial authority,
even according to the Imperial legislation, can be granted under
pain of invalidity only in a case of necessity (necessitas), but not
for a case of utility (compare the Laws 22 and 25, Cod. 5, 37), and
after a careful examination of the case, "causa cognita prseses
provinciae debet id permittee" (Lex 11, Dig. 27, 9; compare also
the Laws 5, 9-11, eod. 6 and 12, Cod. 5, 71). This examination
of the reasons is also necessary in the case of alienation of the
property of the furiosi or of the prodigi with respect to whom the
same principles are in force : " Prases provinciaj idem servari
oportet, et si furiosi vel prodigi vel cujuscumque alterius prasdia
curatores velint distrahere" (Lex 11, Dig. 27, 9). The judicial
304 The Ottoman Land Code.
authorisation is indispensable only exceptionally in the case of the
fulfilment of an obligation transmitted by inheritance to the minor
(Lex 5, 6, 7, Dig. 27, 9), but all alienation, even that done con-
formably to the laws, can be questioned by the minor on the ground
of damage by means of the restitution in integrum during fuur
following years after his coming of age ; disposition, however
contrary to Article 52 of the Code in question, which confirms the
imi m peach ability of the sale (compare Lex 2, 3, 5 ; Cod. 2, 25 ;
Lex 11, Cod. 5/71 ; Lex 4, 5, Cod. 2, 27 ; Lex 29 pr. ; Lex 47 pr.,
Diir. 4, 4 ; and for prescription quadriennium, Lex 7, Cod. 2, 53).
B. French law. The guardian, even the father or the mother,
cannot alienate or hypothecate the immovable property without
beinii authorised to do it by a family council. This authorisation
must not be granted but for a case of necessity, or for evideut
advantage. In the first case, the family council will grant its
authorisation only after it has been proved, by a summary account
presented by the guardian, that the last movable effects and the
income of the minor are insufficient.
The family council will point out in all cases the immovables
that must in preference be sold, and all the conditions which it
may consider useful (Art. 457 of the Civil Code). But "the
deliberations of the family council relative to this object will be put
into execution only after the guardian has asked for and obtained
the approval of it by the tribunal of first instance" (Art. 458).
With regard to the procedure to be followed for the approval of the
deliberation, compare Arts. 882-889 of the Civil Procedure; and
with regard to the public sale by auction of the immovables,
compare Art. 459 of the Civil Code. The alienation of the immov-
ables of interdicts and of emancipated minors is governed by
the same conditions. The emancipated minor " could not alienate
his immovables without observing the forms prescribed for the
minor not emancipated " (Art. 484 of the Civil Code). The inter-
dict is assimilated to the minor as regards his person and his
landed property ; the laws of the guardianship of minors are to be
applicable to the guardianship of interdicts (Art. 509 of the same
Code). " The same authorisation of the family council will be
necessary to bring about a division " (Art. 465). As t6 the pro-
cedure to be followed, compare Art. 460 of the same Code, and
note 42 ; see also the following note.
Notes. 305
'.)."). A. Chifiliks of minors. As regards the general manage- Man;,
nient and the letting or the sale by public auction of Chiftliks ment > Ie
belonging to minors that is, property consisting of buildings, cattle, &*' f e
beasts of burden, vines and other property, and domains to which infants'
they belong see Chap. III., Arts. 31-33, of the Tapu Law. property.
B. Landed property of minors domiciled in Crete. As regards
exceptionally the superintendence by the respective Demoyerontes
of the management of the property of the Christians or Mussulmans
of the island of Crete \vho are under guardians or trustees, see the
judicial regulations of the vilayet of Crete, Arts. 70, 71, classed in
the third section of public law.
C. Legislation relative to minors in general, Arts. 18, 20, 50-53,
61, 63, 65, 76; and Arts. 31-33 of the said Law. The chapter
about, sales being finished, it must be observed (1) that, as regards
the sale of land granted to colonists, it is necessary to compare
Art. 8 of the special law ad hoc (L6g. Ott. Vol. L, No. 6, page 17) ;
(2) as regards the alienation of vakf lands held by ijareteiu, to
Law No. 19, Arts. 4, 15, 17, 18, 20-22, and 26-29.
96. The provisions of Chapters III. and IV. relative to the beredi- Devolution
tary transmission, and to the vacancy or escheat of Mirie lands, have b >" innent -
been essentially modified by the law " relative to the extension of
the right of inheritance to landed property called Mirie and
Mevkufe, dated the 17th Muharem, 1284 (21st May, Ib67), of
which the entire text will be, found at page 158, and the provisions
relative to the right of inheritance in the note 100. As regards the
application of the present code relative to Christian estates, compare
the Vezirial order " on the Inventory of Christian Estates " (Leg.
Ott. Vol. L, No. 11, page 43).
97. Literally, under his care, given to him on certain conditions. Death of
The term indicates rather the enjoyment usufructuary than owner -
patrimonial, that which constitutes mulk, freehold (Belin).
98. As regards estates bestowed on posterity, compare with the Descent t.
Koman law La Novelle 118, Chap. L, and with the French law child -
Arts. 731 and 745 of the Civil Code ; and as regards the estates of
adopting fathers, Art. 350.
99. According to Roman law, " antiqui libero ventri ita pro- Child en
spexerunt ut in temptis nascendi omnia ei jura inte^ra reservarent" vent *
mere.
A.
306
The Ottoman Land Code.
(Lex 3 pr., Dig. 5, 4). As for " cura bonorum ventris nomine,"
compare Lex 1, 4, Dig. 50, 4; Lex 1, 2, 42, 7; Lex 8,
Dig. 27, 10; Lex 1, 17-26; Lex 5, Dig. 37, 9; in the same
manner for the trustee to the unborn, compare Art. 393 of the
French Civil Code.
Descent 100. In consequence of the law on the extension of the right of
upon inheritance mentioned in note 96, the order of succession to lands
Mirie and Mevkufe established by the Law has been modified in
t'aihn-e of the following manner:
chiHren "Art. 1. The provisions of the Land Law are maintained which
a ?M d gr " establish the right of succession in favour of the children of both
sexes, in equal portions, to lands Mirie and Mevkufe.
." On failure of children of the one or the other sex the succession
to these lands will fall to the heirs of the subsequent degrees, in
equal shares and without any obligation in return, namely
" 2nd Degree. To the grandchildren ; that is, to the sons and
daughters of the children of the first degree of both sexes.
" 3rd Degree. To the father and the mother.
To the brothers german, and to the brothers
"4th Degree,
consanguineous.
" 5th Degree,
sanguineous.
" 6th Degree.
" 7th Degree.
To the sisters german, and to the sisters con-
To the brothers uterine.
To the sisters uterine.
" On failure of heirs, to the undermentioned degrees :
" 8th Degree. To the surviving husband or the surviving wife.
" Art. 2. The heir within one of the degrees established above
excludes all the heirs belonging to the subsequent degrees. For
example, the grandchildren cannot inherit the lands if there be
children, and the father and the mother will be equally excluded from
the inheritance by the grandchildren existing, and thus for the others.
" But the children of the sons and daughters pre-deceased being in
the place of the said sons and daughters, will inherit by right of
representation the portion falling to their father and mother pre-
deceased from the estate of their grandfather and their grandmother.
But the surviving husband or wife will have a right to part of the
inheritance of the lands transmitted by succession to the heirs of all
the degrees from the 3rd degree (succession from the father and
Notes. 307
T) inclusive to the 7th degree (succession of the uterine
>') inclusively.' 1
With respect to Ilomanlaw, compare (d) relative t<> the successions Rules of
falling 1st, to the ascei.dants of the deceased, to the brothers iaheri '
and sisters consanguineous, and to the children of the brothers
and sisters pre-deccased (Xovelle, 118, Chaps. II., III. pr., and
. .iap. I.); 2nd, to the uterine brothers and sisters,
and to the children of the brothers and sisters pre-deceased
hap. III.); 3rd, to the other relations, preferring the
nearest (Xovelle, 118, Chap. III., 1). (&) As regards unusual
estates (1) of the poor widow (Xovelle, 53, Chap. VI. , Xovelle 117,
Chap. V.) ; (2) of the young person of full age emancipated by the
adopting father without any reason that is, "la quarta Divi Pii ? '
( 3, Inst. 1, 11 ; Lex 22 pr., Dig. 1, 7 ; Lex 2, Cod. 8, 48 ; Lex 13 pr.,
Dig. 38, 5). As regards French law, compare (a) as regards estates
falling to the ascendants, Civil Code, Arts. 746-749; and to
collateral estates (Arts. 750-755). (6) Relative to irregular
successions (1) of natural children (Arts. 756-766); (2) of the
surviving husband or wife and the State (Arts. 767-773). (c) As
regards the right of [representation, jus representatiouis (Arts. 739-
744).
101. According to the common civil law, or Mussulman religious Right of
law, when on the opening of a succession one of the heirs is absent, absent
and that from his disappearance there has elapsed, without having
had any news of him, a space of time equal to the probable limits
of human life, this heir is considered as uncertain, and consequently
excluded from the estate. But in case the amount of time elapsed
leaves some doubt on the existence of the absent, his part of the
inheritance is reserved calcufated according to certain rules and
the definitive division is suspended until there is reason to pronounce
that he is either dead or alive (Sol vet, ' Mussulman Estates,' page 7).
According to French Civil Law, if a succession is opened to which
an individual, whose existence is not recognised, is called, it will
fall exclusively to those with whom he would have had the right
to compete, or to those who would have received it in his absence
(Art. 136 of the Civil Code> -Bee the following note.
102. According to the French Civil Code, the provisions of the
Art. 136 (mentioned in the preceding note in fine) will have force
x 2
;o8
The Ottoman Land Code.
Right of
absent
child.
without prejudice to actions by petition of hereditary right and
other rights which belong to the absent, or his representatives, or
attorneys, and which will not be extinguished by the lapse of
time established for prescription (Art. 137).
Right of 103. The order of succeeding to this absent possessor, who is
Iren of p resume( i to be dead, has also been modified by the law cited in
owner. note 100. As to the meaning of absentee whose existence or
decease is unknown, according to Mussulman law in general, compare
note 101 relative to the absent heir. As regards French law,
compare Arts. 112-143 of the Civil Code, and specially Arts. 115,
120.
Privilege
of soldier.
104. According to the Law 3, Cod. 2, 50, "quod tempore militias
^e b on i s alicujus possessum ab aliquo est posteaquam is reipublicas
causa abesse desiit, intra annum utilem, amota prescriptione
temporis medii possessionem vindicare permissum est ; ultra autem
jus possessoris lanlere contra eum institutum non oportet ; " and
according to the Law, 4 Cod., " venditionem autem in id tempus
differri, quo reipublicee causa abesse desierint." (Legislation lie-
lative to Soldiers, Arts. 59, 9, 67 and 73.)
105. See notes 96 and 100, and the note following 106.
Right of 106. The right of preference to Tapu of collateral relations, and
owner of o f the wife of the deceased, which, as we have already observed,
has a certain affinity to the Erblosung of the German law (see
note 83), has been abolished by the law cited in note 100. in
virtue of which a right of inheriting the lands Mine" and Mevkufe
of the deceased, following the order "-established by the said law,
has been granted in their favour.
Mulk trees
or build
ings.
Preferen-
tial right
of joint
tenant.
107. As regards the rijiht of preference of the joint holder in the
case of the sale of the common land by the joint hoMer, see above,
Arts. 41, 42, and notes 78, 83, and 112 ; legislation relative to
communio possessionis, Arts. 15-19, 35, 41-43, and the Art. in
question, 59, 8.
108. In regard to the righ't of preference of the inhabitants of
Notes. 309
the same district (commune) in the case of the sale of the land Finality of
situati-il in the cc.nnnnne, see Art. -lf>, and notes 78, 83, and 112. award.
109. On account of the extension of the right of inheritance we Failure of
may complete the expression of the text as follows: ''nor otln-r
ptrsons called to inherit according to the order established by the
law ad hoc " (see note 100). Tapu.
110. As regards the right of the State to unclaimed estates, or Extent,
rather the return to the Sate of the right of possession as owner,
compare note 10 ai.d Art. 2, page 2.
111. Consequently they can demand restitution in integrum of Preserva-
this loss of their right, and thus exercise their rights of preference t | on f
against the purchaser of the land, but, however, within the time "^j,
fixed for the bringing forward the claim, as is seen in the article under dis-
and the following: Legislation relative to Minors, Arts. 18, 20, ability.
50-53, 60, 61, 63, 65, 76 ; and Tapu Law, Arts. 31-33.
112. The provisions of the Art. 61 in fine, in virtue of which the Period for
prescription of the action for restitution is not suspended during asserting
the state of minority, madness, imbecility, and absence, exceptional B
provisions, and contrary, besides, to the principle established by
the same code in favour of minors and others prohibited (Arts. 20,
52, 76), is, however, in accordance with German law, according to
which the minor cannot demand restitution on account of neglecting
to exercise the right of preference in the sale (Retractsrechts)
within the time fixed by the law. " The principles which are in
force about the prescription of suits (says a decree of the Supreme
Court of Appeal of Celle of the, year 1852) finds no application of the
delay of a ytar and a day fixed for announcing the right of claiming
restitution, which is foreign to Eoman law. Consequently he who
has the right of preference cannot make use of the privileges granted
to the minor relative to prescription, because the delay fixed for
bringing the action for restitution (Retractsklage) is in force also
against the minor without his being able to obtain a restitution
from neglecting this delay (see Seuffert, ' Archiv fur Kntscheidungen
der obersten Gerichte in den deutschen Staaten,' Band 7, Xo. 82).
It must also be observed that the Retractsklage, the action to
claim restitution of the German law, that is, the one within whose
310
The Ottoman Land Code.
Forfeiture
TaVu 1 10
Sale sub-
' *
infants &c
denomination are included all the special actions by which one
may avail of the different kinds of right of preference to a sale
(note 83), "is a real action (dingliche Klage), according to the
opinion of the plurality of authors, whilst others consider it as an
actio in rem scripta." (See Lewis on the word "Naherrecht" in
the ' Encyclopedic der Rechtswissenschaft ' of Dr. von Holtzendorff.)
The Ottoman law adopts .the opinion prevalent in Germany, in
admitting the action for restitution against ihe holder of all land
sold. (See the Art. mentioned in the note 78, 1-3, and the Art. in
question, 61.) As f regards the collision of the rights of preference
put forward by different persons to the same property, according to
German law, "when several having a right of ] -reference bring
forward at the same time their claim, if their actions are based on
the same kind of rii:ht of preference, in the case of Erblosung (that
is, the right of relations), the nearest relation is preferred to the most
distant, and in the other kinds prejudice, and finally lottery, decides
(Lewis, end.). The Ottoman law established also the right of pre-
ference of the nearest relations, according to the order laid down in
Art. 59, 1-7, but, as has been said above (note 100), their rights
have been replaced by the succession law. As for by lot, it is
established as regards the inhabitants of the same commune .(see
Art. 69, 9). Thus the collision of rights can take place in other
cases, regarding which the law has established no order among the
different kinds of right of preference.
113. The provisions of Art. 62 are not applicable to collaterals
* n consec l ueDCe f the law of succession (note 100), but only to the
others having a right.
114. Because their guardians and trustees by Art. 65 may purchase
land by the tax of Tapu, if it be advantageous. See also the
P recec ^ n S note - (Legislation relative to Minors; compare note 111
in fine.)
115. As regards the degrees 1-7 of the Art., modified 59,
compare the note.
116. In conformity with the German law, according to which
"the right of preference cannot be availed of but by him who
alone has the right in favour of himself. It is, therefore, neither
alienable by cession, nor transmissible by inheritance to his heirs."
Notes. 3 1 1
Lewis in the ' Kneyclopiidie ' mentioned above, in the note Degrees of ,
112, .
entitled.
117. Compare also Art. 51 and note 111. as regards the A
- minors.
.:pare also Art. 44 as regards the right of preference.
Nation rel.-r _'.s become Mi.l/. .
<>). .
11!'. Pr. ' :i ve to soldiers (Arts. 58, 59. 9, 67 and 7-'i).
Compare, however, note 104.
Sre Art. 11 arid note 30.
121. See Art. 69 and note.
122. According to Roman law, tho emphyteuta may be deprived Di?v
of the right of having a long lease ---(I) in the case of deterioration unnlie.l
of the land (Nov. 120, chmp.vuL, I >, which is applied also to land '
the letting of the laud (Lex 3, Cod. 4, 65) ; and (2) in the ca-
non-payment of the rent to the owner, or of the taxes during three
years, "bin per totum tricnnium neque pecunias solvent neque
apochas domino tributorum reddiderit " (Lex 2, Cod. 4, 66). <
pare, however, the chapter 58 of Book xi., Cod. de omni agro
deserto, and the following note. As regards the cessa'ion of the right
of usufructus with respect to the usufructuary, according to the
Roman law and the French law, in the case of deterioration, compare
note 7. As regards the legislation relative to the loss of the right
of possession on account of no revenue, see Arts. 69-
123. " Si vacanti ac destitute solo novus cultor insederit ac Recov
vetus dominus intra biennium eadem ad suum jus voluerit revocare, ot * ^ ost
restitutis premitus, qiu-e expensa constiterit, facultatem. loci proprii a
consequatur. Xam si bieifnii fuerit tempus emensum, onine ]os-
uis et domiuii carebit jure, qui siluit " (Lex 8, Cod. 11, 58).
124. In conformity to the Roman laws, according to which Right of
" inundation does not change the nature of the land, and therefore, own-
when the waters have retired, it is indubitable that the land belongs
to him to whom it belonged " (Lex 6, Dig. 41, 1). In the same
way, u Alluvio agrum restituit eum, quern impetus fluminis totum
abstulit, itaque si ager, qui inter viam publicam et flumen fuit,
inundatione flummis occupatus esset, sive paulatirn occupatus est
sive non paulatim, sed eodeui impetu recessu fiuminis restitutus ad
312 The Ottoman Land Code.
pristinum dominium pertinet ; flumina enim censitorum vice
limguntur, ut ex private, in publicum addicant, et ex publico in
privatum: itaque sicuti hie fundus cum alveus flurninis factus
esset, fuisset ptiblicus, ita mmc privatus ejus esse debet, cujus antea
fuit " (Lex 3, Dig. eod). As regards French law with respect to
the right of alluvion, compare Arts. 556-563 ; and especially for the
case in question, Arts. 557, 558, and 563.
125. As regards collaterals who are already heirs, see the notes
100 and 106. '
126. As regards collaterals, see the preceding note.
Privilege 127. In the note 104 the Law 3, Code 2, 50, has been mentioned,
>f soldier, according to which, " it is allowable during one year to a soldier
after his return to claim those lands which another has in his
power, and his claim cannot be opposed by the possession of them
during that time." To complete what has already been said about
soldiers according to Roman law, it must be added (1) that by the
Law 17, Dig. 4, 6, " One must assist a soldier, not only against the
possessor of an inheritance which belongs to him, but also against
those who have bought something of it, so that by appearing as
heir he can claim the hereditary effects even sold." (2) That
the term of this restitution in totality (restitutio in integrum),
which, according to the law of the Pandects agreed with the year
which has been modified by the Emperor Constantine, and finally
by Justinian, who fixed as such four consecutive years without
distinction of place or person (Lex 7, Cod. 2, 52 or 53), "quad-
riennium continuum.'* See also, as regards minors, note 94 (A),
page 98. (3) That the pratorian edict, in virtue of which the
restitution could be demanded, being drawn up in these terms,
*' if anyone has sustained injury or damage to his property whilst
he was absent in good faith for the service of the republic (reipublicse
causa abesset)" (Lex 1, 1, Dig. 4,6), all the military who cannot
leave their flag without danger are considered absent for the service
of the republic (Lex 45, Dig. 4, 6), and for that the military man
on leave and at home is not looked upon as absent " for the service
of the republic " (Lex 34, eod. ; Lex 1, Dig. 49, 16). However,
" a soldier on leave is considered abseut whilst he is going home
or coming from it, but he ceases to 4>e so whilst he is at home "
(Lex 35, 9, Dig. 4, 6). Compare also Lex 8, Cod. 2, 50 or 51).
Notes. 313
(4) Except the combatants abroad and in the ranks " the Kmpemr Privilege
Antonine had decided that it v rue for the guards of the of military.
:iis militibus (Lex 35, 4, Dig. 4, ). (5) The
the army (militum medici) can also demand to have
restitution for the sa: . because their functions are public
and ought not to injure them (Li-x .'53, 2, eod.). (6) Also, those
,t to load or to brin.:: back soldiers, or to recruit (Lex 35,
eod.); and, finally (7) The women who accompany their husbands,
abs.-nt for the service of the republic, like those *of the military
(Lex 1, Cod. 31 or 52). (8) As regards the time dining which they
are supposed to b absent for the service of theTState it is established
h, the time occupied by the function they exercise, but as
soon as the absence for the service of the State has ceased a reason-
able time is fixed for the return (Lex 38, 1. Dig. 4, 6). It is for
this reason that one is absent through bad faith when one does not
return so soon as he might have done, and there is no cause for
restitution on account of the damaire suffered by his absence (Lex
4, eod.); but if one falls ill in returning, so that he cannot continue
his journey, humanity requires that it be taken into consideration,
as also to the season, to the difficulties ot navigation, and other
accidents which are imperative reasons for delay (Lex 38, 1, in
fine eod.). Compare also, as regards soldiers, Arts. 58, 50, .9, and
67, and note 104.
128. With respect to absentees see Art. 56 and note 101 ; as Absentees,
regards absent owners who are presumed to be dead, Art. 57.
129. (A) According to Roman law, if the guardian or trustee Default of
does not manage the Kstate, or does so improperly, of the minor, g uardian
he can be compelled by tl^e competent authority, "strictionikis 01
reniidiis adhibitis," to fulfil his duty, and in case of non-obedience
he may be replaced by another as suspected (Lex 3-5, Cod. 5,
43 ; Lex 3, 5, 16-18 ; Lex 4, 4 ; Lex 7, 1, 3, Di*. 26-10).
(B) Also, according to French law, those whose management
show incapacity or infidelity may he dismissed from the guardian-
ship (Civil Code, Art. 444, 2 ; compare also Art. 450). As regards
the letting Chiftliks belonging to minors in general, compare
note 95.
%
130. (1) As regards specially the sale by public auction of lands
314 The Ottoman Land Code.
k Disposal of escheated to the State either from want of right to Tapu or from
lands es- abandoning this right, sale, which must take place before the
cheated, tec. . , . . , ,. ,-, ., , . ,
Administrative Council, and, with respect to lands measuring more
than 500 hectares, before the Imperial Treasury in the Ministry of
Finance, compare Arts. 17, 18 of the Tapu Law and the law of the
Vilayets, Arts. 34, 48. (2) As regards the voluntary sale or aliena-
tion by the holder of lands of which the concession is confined to
functionaries ad hoc of the finance in the departments and to the
caimacams (administrative functionaries of every commune) compare
Art. 88, and Art. 1 of the said law. (3) It must be observed here,
what has been omitted iti note 108, that 9 of Art. 59, relative to
the right to Tapu of the inhabitants of the same commune, has
been modified by Art. 18 of the same law only as regards lands of
great extent and the Chiftliks whose separation and division is
injurious, and as regards which the right of preference on the
acquisition of land is abolished, limited in this case only to the 8th
degree, that is in favour 1st of the owner of the trees or buildings,
when this person, being perhaps the heir according to the Common
Civil Law (Art. 81) and not according to the exceptional order
established by the law mentioned in note 100, has however in-
herited the said trees or buildings (Art. 59, 7) ; and 2ndly, in
favour of the joint holder (Art. 59, 8), concerning whom see also
Art. 11 of the Instructions about Tapu Title-deeds ; 3rdly, as regards
the right of parents, Art. 59, 1-7, which has been altered by the
law of succession (see note 106) ; 4thly, as regards the annulling or
rescission of the definitive decision of the granting the right of
possession (see note 140); 5thly as regards the offer about the
purchase of land to those who have a right to Tapu before putting
it up to auction (compare 4 and 15 of the said Regulations).
Prescrip- 131. (A) As regards the acquisition of the right of possession of the
tive title, holder of the land by the right of Tapu against the true claimant
(and not against the State, as it is stated in Art. 78), see, Art. 20 ;
compare also Art. 8, of the Regulations about Tapu Title-deeds.
(B) As regards Roman law, the usufruct may be acquired by Pre-
scription of ten years for persons present, and twenty years between
persons absent (see note 47); but, as regards the acquisition of jus
emphyteuticum in agro vectigali, the doctrine of authors is not
unanimous. According to some, the emphyteusis may be acquired
Notes. 3 1 5
by usucnpion whether there be no emphyteusis, so that the owner f Prescrip- (
himself is the person who loses by the tisucapion, whether the tiling tiv e title,
is already subject to an emphyteusis, so that it is the right of the
Kmphyteute of that time who is excluded by the usucapiun (Wind-
seheid, ' Pandektenrecht, 1 221). According to others the usu-
ca]ion is quite inapplicable, or according to others it is admissible,
the ordinary as well as the extraordinary, but only that which is
translative and not constitutive of the right of emphyteusis
(Puchta, ' Pandekten,' 177) ; whilst according.to others only the
extraordinary is admitted, that is, that of forty years, which is
established by law (14 Cod. 11, 61) in these terms: " Jubemus
omnes (jui in quactimque proviucia fundos patrimoniales, vel temp-
loriim et vel cujuscumque juris per quadraginta jugiter annos
(possessione scilicet non solum eomm, qui nunc detiuent verum
etiam eoruni qui antea possederaut, computanda) ex quocumque
titulo vel etiarn sine titulo hactenus possederunt, vel postea per
memoratum quadraginta annorum spatium possederint, nullam
penetus super dominio memoratorum omnium fundorurn vel locorum
vel domorum a publico actionem vel rnolestiam aut quamlibet
inquietudinem formidare," &c. As regards French law see a
transitory law dated 20 May, 1836, "on usurped domainial lands."
132. See Art, 21 and note 48.
132 bis. In consequence of the extension of the right of in-
heritance to collaterals (note 100), it appears that the provisions of
Art. 80 find no application.
133. Defter Khane, general depot of the ancient archives and Definition
registers of the Cadastre, relative to the lands of the State. / Def ter
(Compare D'Ohsson, ' Tableaux de 1'Empire Ottoman,' T. VII., Khan *'
page 193.)
134. With regard to this right of property (Mulk) of the tre'.s Mulk of
or buildings on State lands, held either by the same owner of the trees, \-<:.,
trees or buildings, or by another owner, it remains to observe that on State
the provisions relative to them have great affinity with the "jus a
super ficiei" of the Eoman law, according to which "the right of
superficies is based on the idea that an edifice or other establishment
which is placed on land belongs to some one without the soil or the
316 The Ottoman Land Code.
ground, "si solum sit alterius, superficies alteriua" (Lex 9, 4,
Dig. 39, 2; Lex 74, Dig. 6, 1), "qui in alieno loco superficiem
. . . habet" (L-x 1, Dig. 43, 18). Compare Windscheid,
* Pandektenrecht,' 223; but if it be said that besides tlie edifices,
other erections may also be the object of the right of superficies,
there must be included not only structures that may be built
(bauliche. anlagen), for example- a wall, an aqueduct, but also trees
and other plantations (Wiudscheid, eod. 223 in fine). The
right, then, of the owner of the ground, which, by the per-
mission of the competent authority which represents the State
as proprietor, has planted fruit-bearing trees (Art. 25), or nc in-
bearing fruit (Art. 29), or has erected buildings (Art. 31), or has
grafted or raised trees grown naturally on the land (Art. 26), or
has already acquired property, in vines or fruit trees, planted by
him without the permission of the authority by prescription of
three years (Art. 25), and which right of the owner becomes thus a
right of property in the said buildings or plantations, alienable
separately (Art. 48), and transmissible by inheritance as Mulk to
his heirs according to common law (Art. 59, 7, and Art. 81) :
it is nothing but a right of superficies on the land of another, that
is, another real right on the soil of the State, which is the proprietor
of it. It is true that, in Koman law, the establishment superficial
is not considered as the real property of the person having the right
to the superficies (Lex 2, Dig. 43, 18 ; Lex 86, 41, 30 ; Lex 19 pr. ;
Dig. 39, 2; Lex 49, Dig. 50, 16; Lex 10, Dig. 10, 2), on account
of the impossibility in law of such a legal connection, because that
which has a lasting connection with the land has no independent
existence of itself, but is an essential part of the land, and conse-
quently it cannot be the object of a special right, but is included
necessarily in the legal connection which exists with the ground; so
that the superficies is a right on the thing of another, of which the
purport, however, is more extended than that of a simple jus in re
al'ena (see Windscheid, eod.), whilst in the Ottoman law the estab-
lishment on the superficies is expressly named freehold, " Mulk," full
property. But if it be taken into consideration that after the total
destruction of the establishments (plantations or buildings) the owner
of these can only exceptionally have a right to the ground which remains
(Arts. 82, 83, and note 136), from which it follows that he cannot
rebuild nor plant again if he be not in one of the conditions
Notes. 3 1 7
required b; --83, 89-90, we must admit that even in the Qwnership,
Ottoman l;i\v the denomination Mulk cannot totally deprive this f S 68 ',
right i>f the character of a jus in re alicna, nor quite break off & c
the intimate connection which exists between the right of property
of the State to the soil, and the right of the proprietor of the
establishment as regards the same soil from which that depends,
because that connection is basi-d on the nature of the things. It
may then be considered up to a certain point as an absolute right,
more extensive than a simple jus in re alicua, whilst the right of
-<ionof the land of the State is such from all points. Compare
also notes 118 and 136.
135. See the following note.
136. It is already said (note 134) that, according to the provisions Sites of
relative to the rights of the proprietor of plantations or buildings, vineyards,
the right to these becomes full property (Mulk): (1) When the
owner of the soil had planted or built them with the authorisation
of the competent authority (Arts. 25, 29, 32) : (2) When he has
grafted or raised trees come up spontaneously (Art. 26) ; (3) When
he has planted vines or fruit trees without authorisation, of which,
however, he has acquired the ownership by the three y ears'
prescription (Art. 25). But with regard to buildings on the one
hand, and plantations of trees not fruit-bearing to make a wood on
the other hand, done without authorisation, the law has made no
prescription hi favour of the holder. However, from comparing
Arts. 29 and 31, 32, with the Arts, in question (82, 83), it follows
that the right of the State on such construction, which he may
pull down (Art. 31), or on such a wood cannot be exercised before
the time of an alienation 1?y the owner to a third party, or his
decease, after such a transfer, either by inheritance or between
living persons; it does not seem that the new owner can be
dispossessed as regards the Buildings or the trees. (See Arts. 49 #nd
81, compared with .Arts. 82, 83, in tine, relative to the concession of
the ground on which the buildings or plantations depend.) As to
those made by the joint owner, or by a third party, compare
Art. 35. As regards the loss of the right to the ground which
remains after the ruin, on account of the continual non-payment of
the ijare-i-maktua to the State, there must be compared the
318
The Ottoman Land Code.
Jlestora- < Arts. 84 and 85, and the note 138. As regards the Roman law
tion of relative to the right of rebuilding the ruined edifice: "when tho
mgs ' buililing on the surface has perished, it must be taken into
consideration whether it is not in accordance with the sense of the
constitutive act that the owner of the superficies might rebuild the
establishments" (Windscheid, ' Pandektenrecht,' 223; and
Waechter, ' Das Superficiar oder Platzrecht,' page 116). To finish
the object in question it only remains to observe that right granted
by the State to the owner of land to plant trees for the purpose
of becoming their owner is practised also in some localities of
Germany, where the commune grants the right to plant trees in
communal pastures to a private person, so that the said trees
will belong to him upon the payment of a trifling solarium (tax
on the soil); this right of the individual is neither considered
as a personal right that is to say a right ex obligatione, which he
cannot use against a third buyer of the soil nor as a simple right
of usufructus of the trees, which is extinguished by the death of
him who planted them ; but, on the contrary, it is considered as a
snperficiary right, because the intention of the parties was only to
create a true superficiary right, because the intention of the parties
was nothing more than the constitution of a true superficial right,
and it is as such that it has been understood and recognised by
the commune. (Waechter, eod. page 53, mentioned by WmcUcheid,
eod. 223, note 20.)
137. As regards lands yaylak or kishlak, see note 52 and Art. 25 ;
compare also following Arts, and notes.
Vacant 138. As regards land remaining uncultivated during three
meadows, following years, or exceptionally four, if there has been total or
partial succession in the person of the owner, that is, hereditary
transfer or alienation inter vivos without legal grounds, compare
68-76. As regards Roman law, it is already said that the emphy-
teute to whom is assimilated the owner <of State land (agri public!)
with the title of perpetual location, mav' be deprived of the right of
Emphyteuse, excepting in the case of deterioration of" the land ;
also in the case of non-payment of rent to the proprietor, or of
taxes during three consecutive years. (See the note 122.)
139. Nevertheless, in the case of a damage by a fraudulent
Notes. 3 1 9
t ion, tlu- Stati- may, during the ten years after the concession, Right t
pruvoke the cancelling of the sale, if the buyer will not make up Tapu.
the price. ^Si-u the following article in line.)
1 10. Independently of the reasons which may cause in favour of \\.
^:ate the cancelling a definitive adjudication of a grant of land highest
which, as is already said (note 130), must be made either by the JjJjJjJ
Mejlis Idare or by the Imperial Treasury in the Ministry of i an j_
Finance, that is (a) on account of loss by the low price (Art. 87
in question), and (b) in the case of a purchase by a functionary
\vhoia the law prohibits from being a purchaser (Art. 88), the
definitive adjudication may also be annulled or rescinded : (1) By an
hereditary right brought forward by the heir (see note 100) claim-
ing the inheritance, but only during three years after the decease of
the owner (Art. 56, compared with Arts. 74, 75) ; (2) In favour of
a minor or other interdict whose guardian or trustee has not put
forward the right of preference belonging to these, or he has
abandoned this right, but, however, within the term fixed by law
for the exercise of the right in question, without any consideration
for the minority, the state of insanity, or imbecility. (See Arts. 60,
61, 63, 65, and notes 111, 112.) (3) In favour of the soldier, either
as heir (Art. 58 compared with the law cited in note 100), or as
plaintiff for full restitution in all the other cases (Art. 73).
As for the others having right to Tapu, to whom the competent
authority must make as to all those having right to Tapu an
offer to purchase the land before it is put up to auction (See Art.
59, 7-9, 60-62, 64, 6H, 67, 77, compared with Arts. 16-18 of the
Tapu Law), and especially Arts. 4 and 15 of the Regulations about
Tapu title-deeds. According to French law, the sale may be
rescinded in favour of the Seller " if he has been injured by more
than seven-twelfths in the rjrice of an immovable " (Art. 1 674 of
the Civil Code), and in this case "the purchaser has the choice
either of giving back the thing on receiving the price he has paid
for it, or to keep the land on^aying the rest of the just price, with
a deduction x)f one-tenth of the total price " (Art. 1681). But " the
resc^sion does not take place in all sales which, by law, can take
place only by the authority of justice (judicial authority)" (Art.
1684). Also, in the Roman law the sale can be cancelled on
account of laesio enormis, that is when the seller has received a
320
The Ottoman Land Code.
Disability
ot' Tapu
officials
and their
relatives.
price less than half the real price (Lex 16, 4, Dig. 4, 4 ; Lex 22, 3 ;
Lex 23, Dig. 19, 2 ; Lex 8, Cod. 4, 44, note 97, Chap. I.).
But at the sales made at public auction, as regards the question
to know whether the adjudication can be attacked on account of laesio
enormis, the jurisprudence of the supreme tribunals of the stir
the German Empire in which Roman law is still in force, is divided
in this respect as well as the opinions of authors. It is thus that
the Supreme Courts of Stuttgard (1828 and 1845) and of Munich
(1855) have established the unimpeachability of the adjudication
on account of enormous injury, that is, the inadmissibility of the
rescisio ob laesioneni ultra dimidium, whilst the Supreme Court
of Appeal of Jena (1841) and of Liibeck (1850), as well as the
faculties of law of Heidelberg (1858) and of Berlin (1859) have
established, on the contrary, the admissibility of the rescission.
See 1, in favour of rescission, the judgments cited in the archives of
SeufTert mentioned in note 112, vol. vi. ; No. 323, xiii. ; No. 224
and xx. No. 120. (2) Against the admissibility, the Judg-
ments, iv., No. 213, 4 ; xi., No. 17.
141. A. The prohibition of Art. 88 is in conformity with the
spirit of the Ottoman legislation, which prohibits, under penalty,
its public functionaries by whom the farming by auction of the
public revenues is made, from becoming purchasers. Compare
the laws respecting the farming by auction of the indirect taxes
and Art. 88 of the Penal Code, Laws classed in the Public Law.
See, however, also Art 238 of the Penal Code with regard to
obstacles put forward to the freedom of auctions. As regards
other authorities who take part in the sale by auction, see ncte
130. B. Roman law. According to the Law 46, Dig. 18, 1, "it
is not allowed that he who administers a thing shuld buy it,
neither by himself nor through the medium of another. Such a
buyer is condemned to lose, not only the thing bousht, but also
four times the value, according to the law of Severus and Antonine.,
even if he were the Attorney of the Emperor, which never takes
place, however, unless there be a contrary privilege. (See also
note 93.) C. French law. The public officers of the national
lands of which the sales are made through them cannot become
purchasers, neither in person nor through the medium of third
parties, on pain of invalidity (Art. 1 596 of Civil Code).
Nofcs. 32
1 12. ( lom] -2, 83, and note 136.
Arts. 82, 83, and note 136.
L, 4 : Art. 5, and notes 5, 21-22.
145. See the following note.
Tin- forests of the Ottoman Empire being divided into four Public
. that is, (1) forests belonging to the State ; (2) those which
appertain to the administration of the Evcaf. ; (3) Communal Forests
or Baltalyks; (4) woods and forests belonging to private indi-
viduals, all that concerns the last category having been treated
in the Land Law, the provisions of the Forest Law have no appli-
cation as regards the said woods and forests of private persons
(Art. 1 of the said Regulations, mentioned in note 60). Never-
theless, the law in question contains also provisions relative to
communal forests (Baltalyks), that is, those of the articles in
question to which the said Forest Law refers, in the Arts. 21-26,
of which here is the text :
Art. 21. The Baltalyks are the forests which from all time have
been appropriated to the parishes for their use and benefit.
Art. 22. In consequence, and in virtue of Arts. 91 and 92 of the
Rural Code, the inhabitants of these parishes have alone the right
to profit by them, to the exclusion of those of neighbouring
parishes and all other individuals.
Art. 23. Private persons are prohibited from buying from a
parish any portion whatsoever of the soil of a Baltalyk, or any
number whatsoever of trees to profit by them standing. In a word,
the alienation of any portion whatsoever of the ground or the
surface is prohibited except for regular exploitation.
Art. 24. In lawsuits relative to Baltalyks it is prohibited by
Art. 102 of the Rural Codeto put forward the plea of prescription.
Art. 25. The inhabitants of a parish profit by their Baltalyk
either individually or in confmon. The wood cut for a commercial
purpose shall pay the tithe.
Art. 26. The inhabitants a*re bound to watch over the preservation
of their Baltalyks. Instructions concerning the police of these
forests will be published subsequently, and the agents of the public
force will be bound to act jointly with the Mukhtars to carry them
out.
To complete what has been said as regards woods and forest?,
Y
22
The Ottoman Land Code.
Inalien-
ability of
parish
forests.
belonging to each, of these categories the following observations
must be added.
A. Parish forests (Baltalyks). As is seen, the modifications
made in the Law in question consist only (1) In the prohibition
that not only the State (Art. 92 of the Law) but not even the
commune (parish) can alienate any portion whatsoever of the land
or of the surface (Art. 23 of the Forest Law). As for the right of
superficies on State land, to make a wood, see Art. 29 and note
134. (2) In the subjecting to Tithe wood cut down for commercial
purposes (Art. 25), and this because, according to the statement of
the reasons of the said Law, " they have the right to sell the wood
produced by their Baltalyks." As regards their right to profit
by the domainal forests, see below (Forests of the State). (3) In
the government superintendence, besides that of the inhabitants con-
cerning the police of the forests, provisions which, according to the
statement of the motives of the said Law, " have been taken
to ensure the preservation of the communal forests," As to the
identical provisions of the Code and of the Kegulations, as concerns
(A) the enjoyment and the inalienability of the communal forests
(Arts. 91-92 of the Code, 21-23 and 25 of the Kegulations) see the
notes 147, 149, and 152 , and as regards the imprescri ptibility,
(Art. 24 of the Kegulations) see Art. 102 of the Code and note
157. Compare also Art. 12 of the Regulations of the Mines.
B. Forests of the State. According to the statement of the
reasons of the said Law, "as all the communes do not possess
Baltalyks, and as besides they enjoyed long since the right to take
gratuitously in the forests of the State all the wood necessary for
their use," it has been decided that the right of enjoyment should
be given to them, but subjecting them to certain rules. It is
thus that by the provisions of Art. 5 of the same Law, " the
inhabitants of the communes will be authorised to take gratuitously
in the forests of the State the wood foi their use, such as for build-
ing and repairing their houses, barns, stables, carts, agricultural
implements; also all the wood necessary for their household.
Besides this, the wood and charcoal which they may transport by
their carts and beasts of burden to be sold in the bazaar of their
commune will also be given to them gratuitously." But if it be a
question of considerable quantities or of sales to take place outside
the market above mentioned, they will be bound to pay a price.
Notes. 323
"The inhabitants of the communes will U- assimilated to traders
and be bound to conform to the provisions of the JU-gnl:iti<ns <!' w<..ls and
'.rests as regards the wood they wish to trade in. A special
regulation, relative to the control to be exercised by the Administra-
tion about gratuitous deliveries will be ultimately promulgated."
Also, according to Art. 17, "The inhabitants of the commune
may be authorised by the forest agent to gather, without paying
anything, dead wood lying in the forests of the State situated on
the territory of their commune." But besides, tte same inhabi-
tants have also a right of pasturage for their beasts in these forests,
regarding which see Arts. 13-16 and 43-45 of the same Law,
and note 152. C. Forests of private individuals. It is already
known that the provisions of Art. 28 of the Law, accord-
ing to whi< !i es come spontaneously (on land mine) can
neither be cut down nor carried away by the owner of the soil nor
by <any one, because they belong to the State, has been annulled Repeal of
by Imperial ordinance (see note 60). However, according to the old law.
statement of the grounds for the Law in question, the State,
in virtue of the said Art. 28, would have the right of using
gratuitously the woods and forests depending on the domainal
lands occupied by private persons. This right, however, has not
been exercised hitherto, and the holders of the forests have con-
tinued to benefit by it exclusively. It is for this that the Regula-
tions concerning the furnishing wood suited to the service of the
marine and the artillery, although promulgated some days before the
promulgation of the said ordinance, does not fix in favour of the
State the right of servitude over the private forests, that is, to take
wood for the service of the marine and the artillery, but exception-
ally and with the condition that the trees to be taken must be
at least two archines in circumference at one and a half archines
from the ground. Trees existing in enclosed gardens as well as
those situated round habitations are excepted from this bondage
(Art. 11 of the said Regulations relative to the marine). But
as regards those rare pieces that may have to be chosen, it is
just, says the same report, " that the State should pay its value."
It is thus that the valuation in money shall take place in the
presence of the proprietor (Art. 15 of the said Regulations), and if
the agents of the Forest Administration cannot agree with the
owner about the price of the wood, experts (khibres) named by the
Y 2
324 The Ottoman Land Code.
local authorities will be appointed to fix it, and their decision must
be accepted by the Forest Administration and the owner (Art. 16,
eod.). As regards the observation of the said statement of reasons
that the State shall have the right of cutting down trees in the
forests of private persons, it must be observed that it makes allusion
probably to forests created by trees growing spontaneously in the
earth ('Art. 28), and to woods descended from father to son or
bought from third parties, held by Tapu (Art. 30), and not to
forests created by trees planted by permission of the authorities
which have become Mulk (Art. 29). However, after the abolition
of the right of owneiship by the State over teres come up spon-
Private taneously, there must be recognised always two kinds of private
\viiods. woods the woods held by Tapu either as a dependence of the
ground or as the principal object of possessim ), and the
Paramount woods held as freehold (Mulk). The right of the iState to take the
right of trees necessary to the marine and the artillery includes without
distinction all kinds of woods belonging to private individuals.
With respect to the French legislation relative to the woods of
private persons, compare Arts. 2 and, 117-121 of the Forest Code.
Forests of D. Forests of the Vacoufs. " These forests are assimilated to
Vakfs. the lands depencU-nt on the Evcaf., of which the revenues are ex-
pended in maintaining the foundations to which these lands are
dedicated (Art. 19 of the Law). They have also been subjected
to the same Law for their preservation ; and, as regards the right
of the State to take wood for the service of the marine, they
have been subjected to the same regulations as the woods of private
persons, with the exception only as to the restriction of the
measure of the trees to be taken. (Compare the whole text of
the said Law with the statement of the motives in the ' Droit
Admiiiistratif,' Leg. Ott. Vol. II., under the title " Forests.")
Highways, 147. A. Mussulman law. The places belonging to no one at d
&c. those belonging to all, as mosques, streets, public places, roads,
&c., are used by each one, but no one can become their proprietor ;
so that when one leaves his place in such a place another can come
and occupy it, and the first when he comes back has not the right
to turn him out. Every one is, however, bound to make use of
these things, so as not to impede the use of them by others, as for
example, to sit in the middle of the road or the street, which
Notes. 325
would interfere with tin 1 fTornauw, ' Droit Mussulman,'
Sect. 11, chap, iv., p. 286.) It is in virtue of th ; a principle of an(l ? ther
a law oi" Mussulmans, similar also to other legislations,
that the Ottoman law in particular (1) has laid down in Arts.
! and H'li, the prohibition against all private property in
public localities, their inalienability and imprescriptibility ; and
(2) has sanctioned these provision^ by Art. 264 of the Penal
Code, in virtue of which will be punished by imprisonment and a
fine, those who may have injured the public roads, the places, the
walks, or other places of public utility, or who have encroached on
them in their length and breadth. The offenders shall also be
condemned to pay the cost of repairs and to restore the ground
encroached < 'ompare also Arts. 133 and 254 of the said
Penal Code (Le_, Ott. Vol. II.), and the Regulations respecting
Roads and Buildings, dated 25. Zilcade, 1278 (Leg. Ott. Vol. III.,
Establishments and Institutions of Common Interest). B. Roman
law. " The prator prohibits the building in a public place and
issues an interdict, that is, prohibits anything to be done in
a place or public road " (Lex 1, Dig. 43, 8), and by this inter-
dict the prsetor takes care not only of the interest of the public,
but also of that of private individuals ; for the public places are
destined to the use of private persons who use them, not as their
private property but in virtue of the right of all ; and each person
has as much right to use them as he had to hinder us from doing
it. This is why, if any one has made in a public road a work
which does injury to a single individual, he can be prosecuted
in virtue of this prohibitory interdict, and it is for this that it
has been made (Lex 2, 3, eod.). But by the denomination
"publici loci" public places must be understood the places, the
islands, the fields, the roa5s, and the public roads (Lex 2, 3,
eod.), and in general "al! the places destined to public use"
(Lex 2, 5, eod.). That this interdict is prohibitive, compare the
Law 2, 1, 10, 16-18, an^ the Law 7, Dig. eod. As regards the
other interdict which prohibits doing anything in a public road
which may deteriorate it, and which by the denomination of
" public way " includes the one of which the soil itself is public
(because the soil of a private road belongs always to the owner of
the land who has made it, although the private road is also called
"via publica" when all the world is allowed to use it. (Compare
326
The Ottoman Land Code.
Kural
roads.
Urban
streets.
Places of
worship,
&c.
the Laws 2, 20-22, 25-32 eod., and notes 2, 22 and 33, 34.) But
this interdict regards only rural roads, and does not concern the
streets of towns, of which the magistrates have the care (Lex 25,
eod.) ; that is, the Ediles (dorwo/uKol) who ought to take care to
prevent diggings in the streets, and buildings, by inflicting fines
on the oifeuder and by destroying what he may have done.
" 'ETrijueAeio&ocrai' 8e (01 a<rr,vi/ojLUKoi) OTTWS p,rj8els opvcraTj, ras
odovs, /z?7e ^vvvr) /z^Se KTIO-T] els ray odovg' el oe ^, 6 p,ev dovXos
viro TOV evTv%6vTOs p.ao~Tiyoixrd(t), 6 de e'Aev$epo? fvbeiKvvo~6(0 rols
d(TTw6p,ois, ol de do-rvvo/Jiot r)p.ioi>Ta>(rav Kara TOV vopov, KOI TO
yeyovbs KaraAveVooo-cu/ " (Leo 1, 2, Dig. 43, 10). French law.
Compare Arts. 538, 542, 714 of the Civil Code ; Art. 471, 4-7 of
the Penal Code, Law on Parish Koads ; Arts. 10 and 21, the
special law on the deterioration of roads of the 2&th Sept., 1791 ;
as also the note 149 (C).
148. A. Mussulman law. Places for prayer (mekian nainaz)
should be, from their nature pure and authorised by the law. To
all others should be preferred the places especially dedicated to
prayer, as the mosques, or the places which are the property of
no one, as the desert or the uncultivated country. It is not
lawful to pray on private property without "the consent of the
owner. (Tornauw, ' Droit Mussulman/ page 54.) It must be
observed that instead of the phrase "edifices destined for prayer'*
of the text, the Greek translation of the Code says the places
destined for prayer (namazghiah) with a note of remark that in
certain provinces of the Ottoman Empire where there is no " Jami '*
sufficiently vast for the inhabitants, there are places surrounded by
trenches or walls in which the Mussulmans say their prayers
called namaz, every Friday and the other holidays. (See the
Ottoman Code of M. Nicolaides, pagp 452.) It seems then that
the law includes places of this sort destined for prayer, and not
edifices in general, which it does not mean. B. Koman law:
" It is prohibited to do anything in a sacred place, and it is ordered
to remove what one has done, and this out of regard for religion "
(Lex 2, 19, Dig. 43, 18). The care and the superintendence of
the edifices and sacred places are confided to those who are
appointed to keep in repair the sacred edifices (Lex 1, 3, Dig.
43, 7).
Notes. 327
As regards the inalienability of the sacred places : " If all that is I*alien-
crt-l, T public be sold, the sale is void (Lex 22, Dig. at
18, 1); and it is for this that religious plar-s (loca religiosa), that p | aceg<
which there has been an interment of a dead person,
contained in a piece of ground sold, does not pass to the buyer, and
he cannot bury a dead person in it (Pauli Sent. 1, 21, 7). See
the following note : .
149. A. 'Droit Mussulman.' As regards the inalienability of
public places, that is of lands metruke, left for the use of one or
many communes, or for the population in, general (Art. 5), the
Ottoman law has adopted the same principles, as the Mussulman
law. " Things which cannot become private property (res
communes publics) cannot be the object of a sale. It is for this
reason that all contracts for sale or purchase are contrary to law,
which have for their object pasturages, streams of water, lakes, free
men, things consecrated (mevkuf), with the exception, as regards
these last, of those which, though consecrated to a use agreeable to
God, would be deteriorated or destroyed for want of being sold
(Tornauw, ' Droit Mussulman, 1 page 117). Besides the places
mentioned in Arts. 92-94, there are also inalienable the sites for
fairs or markets (Art. 95), stacks (Art. 96), pasturages (Art, 97),
places for camping or commonage and for use as pasturage during
summer and winter (Art. 101). As regards their imprescriptibility,
see Art. 102 and note 157. B. Roman law. Things which from
their nature are not commercial (res extra commercium) are
inalienable. Thus " one can legitimately sell everything one can
have, possess or follow; but one cannot alienate anything that
nature or common right and received custom has withdrawn from
commerce" (Lex 34, 1, pig. 181), and for this reason "one cannot
buy anything that one knows is not susceptible of being sold, such
as things sacred and religious places, and those which are not in
trade, such as public places which do not belong to the people, but
are destined for public we, as the Champ de Mars " (Lex 6 pr.,
eod). C. French law. (a) Things common or public. There are
things which belong to no one and of which the use is common to
all. Police laws regulate the mode of using them (Art. 714 of the
Civil Code). Thus, the roads and streets taken care of by the
State, the great rivers and navigable rivers, &c. &c. ; and gener-
ally, all parts of French territory which are not susceptible of
328 The Ottoman Land Code.
becoming private property are considered as dependencies of the
public domain (Art. 538). These things as res extra commercium
are inalienable and imprescriptible (arg. ex Arts. 1598 and 2226).
(6) Communal property. The communal property is that to
which or to whose produce the inhabitants of one or more com-
munes have an acquired right (Art. 542). As regards alienation,
property which does not belong to private individuals is administered
and cannot be alienated, but according to the forms and rules which
apply to them' (Art. 537). As regards, then, the alienation of
communal property, compare the law of the 18th July, 1837,
chapter 4, and chapter 5, with regard to the actions relative to it.
As regards communal woods, compare Art. 90 and the following of
the Forest Law, and Art. 128 and the following of the Ordinance
of the 1st Aug. 1827.
150. See the preceding notes, 147 to 149.
151. See notes 147 to 149.
Common 152. Besides the right of making use of the communal pasturage,
pastures, the inhabitants of the communes have also the right of pasturage.
(1) In the forests of the State under certain restrictions, a right
which the legislator found himself obliged to grant in Arts. 13 to 15
of the Forest Law, on account of the immemorial exercise of this
right, as well as the French legislator, compare Arts. 61-85 of the
French Forest Code concerning the right of usage in the woods of
the State, and as regards the right of pasture of the communes
(Art. 64). Provisions relative to the right of pasturage in the
forests of the State are, according to the Law, the following :
Art. .13. Every year the Mouktar of each commune must give to
the local forest agent a statement showing the kind and the number
of beasts which the inhabitants wish te bring to the forests of the
State.
Art. 14. The forest agent, after having made himself acquainted
with this statement, will- name the district into which the flocks
and herds may be admitted ; he will fix the date and the length
of the commonage as well as the conditions which they are to
observe.
Art. 15. The beasts belonging to the inhabitants of the same
commune will be placed under the superintendence of a common
Notes. 329
iian shepherd, who will take care that the limits fixed for the $
past ura -_:o are not exceeded.
Art. H5. The dealers in beasts, strangers to the commune, who Pasturage
desire to station their flocks and herds in the forests of the State, J State
must obtain the authorisation from the local forest agent, who will
iix where they may be stationed. These owners will be subject to
a payment in accordance with the existing rules and prescriptions.
Art. 4o. It is unlawful to feed any animals whatsoever in the
forests of the State under a penalty of a fine of one piastre per
animal, payable by the owner. In the case of unauthorised
pasturage, there will always be a claim for damage, which cannot
be less than the simple fine.
Art. 44. When the animals found trespassing are part of a
communal flock, the prosecution will be against the guardian of the
flock.
Art. 50. The owners will be joint guarantors for the judgments
given against the guardians of their flocks, with the right of action
against them.
Art. 52. The insolvent offenders who may not have solvent joint
guarantees, will be imprisoned for a time containing as many days
as the condemnation pronounced would make so many times two
Beshliks.
The same inhabitants have also (2) another right of pasturage Lands
in the lands Otlak, where the grass grows very short, and which, as Otlak.
dead land, is not held by Tapu (see Art. 105). As to private
pasturages which depend on Chiftliks, see Art. 99. As regards
the Roman law, compare Chapter LX. of the Book XI. of the Code
" De pascuis publicis et privatis."
153. That is to say, the contents inscribed in the Imperial Limits of
archives. Consequently, the jnbabitants of the communes cannot P asture to
acquire by usucaption in the name of their commune any right of served"
pasturage on the domanial lands not inscribed in the said archives
as destined to the use of the communes.
154. See the sense of Chiftlik, in Art. 131. As to private
pasturage according to Roman law, compare note 152 in fine.
155. " The yard signifies the habitation or, better, the encamp- lourt.
ment of agricultural people and shepherds ; in a word, the group
330
The Ottoman Land Code.
of four or five huts together, such as they are seen still in our days
in the environs of Kutahia " (Belin, No. 328, note).
156. For the meaning of the words "kishlak" and "yaylak,"
see note 52 ; compare also Art. 24.
157. As the communes cannot invoke the usucapion against the
State beyond the limits established for the communal pasture
No pre-
scription
forests^ &c. g roun( ^ s (Art. 98, note 153), in the same manner no person can
invoke the usucapion as regards land left for the public use of the
communes or of the population, which are imprescriptible (compare
also Art. 24 of the Forest Law, note 146) ; and this in conformity
(a) to Roman law, according to which "it is not allowed to
grant the prescription of immemorial possession to acquire public
places according to the rights of people" (Lex 45, Dig. 41, 3).
Also, principally things incorporeal are susceptible of usucapion,
except things sacred, holy, public, &c. (Lex 9, eod.) ; and, as
regards public roads especially, " the people cannot lose a public
road from non-use" (Lex 2, Dig. 43, 11); (b) to French law,
according to which " one cannot prescribe the ownership of things
which are not in trade " (Art. 2226 of the Civil Code). See, how-
ever, Art. 2227 as regards " communal property."
Movat, 158. See above, Art. 6, note 23, and notes 161, 162. Compare
also Arts. 12 to 13 of the Regulations regarding Tapu Title- Deeds.
According to the definition of the * Hidaia,' a work on Mussulman
jurisprudence (which, besides, has been translated into English to
serve as a guide in the administration of justice in India), and of
which the doctrine on this subject is exposed in note 161, " Mevat"
means any piece of unproductive land, either from want of water or
by the fact of inundation, or from any other cause which prevents
its cultivation ; it is called " Mevat,'* dead, because, in the same
manner as the thing struck dead, it is of no use. Text cited by
Worms in the ' Asiatic Journal,' Oct'., 1842, page 363. See Belin,
note 221 following.
Tashlik. 159. That is " stony ground which cannot be cultivated until
being cleared " (Belin).
160. "Pasturage, ground where very short grass grows, and
which serves for pasturage " (Belin). Compare Art. 127.
Mevat. 161. A. Mussulman law. According to the doctrine mentioned in
the ' Hidaia' (see note 158), every piece of ground which for a long
Notes. 331
time has remained uncultivated, without belonging to anyone, or Arai
that has been formerly the property of a Mussulman actually Mevat.
unknown, and which, at the same time is sufficiently distant from
the village that from it the human voice cannot be heard, is called
" Mevat." Whoever cultivates an uncultivated ground, with the
permission of the Imam, obtains it as a property. " Abou Hanifa "
makes of the permission of the Sovereign a condition " sine qua
non," whilst his disciples think that without that authorisation the
property is acquired by right by him who cultivates it. " If au
individual separates a piece of ground, and^ after having placed Disposal of
marks with stones or otherwise, leaves it abandoned for three years vacant
without cultivating it, the Imam may, in this case, retake it and
grant it to another ; for this ground had been given with the inten-
tion of its being made productive, and in order that a benefit might
result from it to the Mussulman community by the levying of tithes
or tribute, &c." (see Belin, note 221, and following, where the
different opinions of Mussulman jurisconsults are exposed in detail.
Compare also, Tornauw, ' Droit Mussulman,' pages 824, 826). As is
seen, the Ottoman law admits precisely this doctrine ; and as
regards specially the condition " sine qua non " of the Sovereign
permission, it has conformed to the opinion of the founder of the
" doctrine Hanefite " which has prevailed in Turkey, adopted by the
Ottoman jurisprudence. The only difference which exists between
the doctrine and the legislation consists in the provision of the law
that the grant of the land may be given only on condition to
rise again for that of the Beit-el-Mal ; that is, to become the simple
possessor by Tapu ; whilst, according to the doctrine based on these
words of the Prophet : " Whoever revives dead ground becomes its
owner," the person who obtains the grant becomes owner, and on
account of this precept the disciples of Abou Hanifa, as well as other
orthodox doctors, do not consider as essential the Sovereign permis-
sion, and for the same reason probably the law does not entirely
deprive the cultivator without permission of the right of becoming
owner, but obliges him only to pay Tapu; in other words, it
establishes in his favour a right of preference on the land cultivated
in the case of a concession asked for by another. The law estab-
lishes also the right of property (Mulk), but only in favour of him
who, with the Sovereign authorisation, has filled up a place taken
from the sea (Art. 132). B. Koman law. Ownership is extin-
33 2 The Ottoman Land Code.
* L__
Abandoned guished by " derelictio ; " that is, by the abandonment of the object,
lands. which is considered as "res nullius" until another person by
occupation has acquired the ownership of it : "si rem pro derelicto a
domino habitam occupaverit quis, statim eum dominium effici : pro
derelicto autem habetur, quod dominus ideoque statim dominus esse
desinit" (Inst. 2, 1). Also, we can acquire a thing if we know
that its proprietor has abandoned it. But Proculus is of opinion
that it does not cease to belong to the owner until it is taken
possession of by another. But, according to Julian, it ceases to
belong to the person who abandons, but it cannot belong to another
if it is not possessed and justly (Lex 2, Dig. 41, 7). According to
M. Guizot (cited by Belin, note 258), land subject to the land tax
and abandoned by its owner fell to the Curie (court), which was
bound to pay the tax until someone was found who would undertake
to do it. As regards specially the legislation relative to private or
domanial lands, abandoned or left uncultivated and desert by the
owner or holder, compare Chapter LVJII. of Book XI. of the Code,
"De omni agro deserto et quando steriles tertilibus imponuntur";
also Chapter VII. of Book XXXI. of the Digest, " pro dere-
licto." C. French law. According to the same author, "Under
the second race of the kings of France the number of desert and
uncultivated lands was immense ; cultivators and even owners of
the soil were wanting ; more than one incumbent, in establishing
himself on the domain he had received, considered as his property
the solitude which surrounded him ; and the King easily granted to
these incumbents lands which they had cultivated or simply occu-
pied " (Guizot, cited by Belin, note 259). According to a decree of
the 6th Aug., 1766, lands of whatever quality or kind they are, which
for forty years, according to public notoriety, may not have given
any crop, will be considered " uncultivated land," and by a declara-
tion of the 13th Aug. of the same y^ear it was decreed that those
who would clear the said uncultivated lands would enjoy as regards
these lands for fifteen years exemption, from taxes, &c., the whole,
however, with the undertaking by them not to abandon the
cultivation of the lands actually under cultivation of which they
may be the owners, usufructaries or farmers, under pain of forfeiting
the said exemptions.
Jibal 162. These kinds of wood may then be considered as things
Mubah. which belong to no one, of which the use is common to all, and it is
Notes. 333
for this that the law has subjected them to Dearly the same rules Jih$l
as public lauds (Metruke). Compare Art. 5, 1, Art. 30 and 106. Mubah.
However, it must be observed that the Forest Law does not con-
sider these forests as di tie rent from the others, so that they may
be considered as belonging to the State, in opposition to the Law,
which considers them as "res communis omnium," but as the Law
is applicable only to forests which are declared " forests of the
" (see Art. 2 of the Law), the question may present itself as
to whether the Government can or not subject the said forests to
the actual regime of the Law.
163. See, in note 120, the meaning of the word "otlak."
Compare also Art. 103.
164. It must be observed that it is not here a question of non- Trees of
bearing trees planted with authorisation (Art. 29), or of those na
grafted or raised (Arts. 26, &c.). Compare Art. 28 modified and S
note 146.
165. See Art. 4 (2).
166. A. Ottoman Metallurgic law (Rf gulations of Mines). Ownership
The provisions of Art. 107 have been essentially altered by the of metals
Regulations of Mines, dated 4. Mouharem, 1286 (3rd April, 1861),
which has repealed also the preceding law of the Mines of 1861. By
the Regulations in force there has been regulated in detail the mode
of the concession and the working of the mines of the Empire.
However, it contains provisions by which the right of mining
ownership has been diminished, substituted by another separate
right relative to mines; that is, by their being worked by third
parties, granted by the Government hi virtue of an Imperial decree.
The provisions relative to the right of the owner to a fixed payment,
payable by the grantee, are contained in the following articles of the
Regulations, of which the entire text is found classed in the
administrative law under the title " Mines " :
Art. 39. Every grantee ,of a mine will pay annually to the
Government two soils of payments one fixed payment for each
donum of land contained in the limits granted, and another
proportional to the production of the mine.
Art. 40. The fixed payment of a mine granted to be worked, by
a Firman, will be five paras per donnm of the superficies of the
grant according to a horizontal plan, the donum being 16SO square
334 The Ottoman Land Code.
architectural archines. The fixed payment of mulk lands belongs
to the owner, and that of domanial and mevkufe land to the
Government. The value of the land bought to work the mine, as
well as the indemnities for injury, will be paid by the grantees
conformably to the special provisions relative to it.
Art. 43. The fixed payment for the land of the mine will be paid
during the current year, but the proportional payment on the gross
produce will be paid thefollowing year and at fixed periods.
(&) As regards the indemnity for injuries which is to be paid to
the owner, and the purchase of ground by the grantee, the said
Regulations contain the following provisions :
Art. 59. When the works for the working a mine are only
temporary, and if the ground where they have been made can by
the end of the year be restored to the original state, the indemnity
shall be double of what the soil would have produced net in the
year, and shall be paid to the grantee or the owner of the soil.
Art. 60. If shafts or galleries have been made in the land, or
permanent works for working the mines have been established, and
if the grantee could not come to an understanding with the owners
for the purchase of this land, he will then be required to buy this
land, and to pay for it at double the value put on it by the
Government.
(c) As regards the working of substances comprised under the
name of ore and specified in the third article of the Regulations,
working made by the owner in virtue of a firman or by another,
see the Arts. 75 to 77 of the said Regulations, (d) As regards the
right of every proprietor " to make on his property any sort of
excavations, having exclusively in view the seeking for mineral
substances, without being obliged to obtain for this purpose any
authorisation from the Government, and of the right of every
other to make similar researches in virtue of a permission from
the general Government, if the owner refuses his consent, compare
the Arts. 11-19 of the Regulations, (e) But the quarries, under
which qualification are comprised marbles, granites, flints, pozzuo-
lana, sands, and other substances mentioned in Art. 4 of the
Regulations, are not subject to the mining regime of the Regula-
tions (Arts. 1 and 4). Consequently they are still governed by
the provisions of the Law.
B. Roman law. According to the Roman laws, the right of
Notes. 335
ownership of the soil extends to the space above and below the Ownership
soil, as well as over fossils which are found below the surface of the of
soil (Lex 13, 1, Dig. 8, 4 ; Lex 1 pr., 14, 15, Dig. 8, 2). And it
is for this that things like sand, chalk, stones, produced by ground,
as revenue are considered to be fruit, and consequently as a
dependence of the soil. (Lex 77, Dig. 50, 16 ; Lex 7, 13, 14,
Pi-. 24, 3 ; Lex 9, 2, 3 ; Lex 13, 5, Dig. 7, 1 ; Lex 18 pr.,
Dig. 23, 5). Compare Windscheid, 'Yandektenrecht,' 144, and
note 3 ; 168 in fine, and note 2 ; 169, 10 ; l8Qn 2-4).
However, as regards the legislation relative to the working of
mines (domanial as well as private) exercised by the proprietor
or by a third party, and to the rent paid to the State or even the
owner, compare Chapter VI. of Book XI. of the Code, " De
metallariis et metallis et procuratoribus metallonim."
C. French law. Compare the law of the 21st April about mines.
167. Treasure. A. Mussulman law. According to the com- Treasure
mentator of the ' Multeka ' a work in which is set forth the trove -
Hanefite doctrine, and which may be considered as forming the
basis of the Mussulman legislation of the Empire " Kikiaz " is a
collective word, meaning at the same time the mines existing in
the bosom of the earth (maaden) and the treasures buried in the
soil (kinz) by men. If the discovered treasure bears an Islamite
mark, it is ranked amongst objects lost and found (loqta), and in
this case it is subjected only to the relative dues ; but if it bears an
emblem of infidelity, such as the figure of an idol or of a cross, it
will be subjected to " khoums." Compare Belin, 124, according
to whom the different opinions of the jurisconsults on the rights of
the State and of him who has discovered the treasure are exposed
in the Fetavi alern guiri. As regards, then, the regulations relative
(a) to objects lost and found (ioqta), to which the Islamite treasure
is assimilated, it is established that no inanimate object found,
worth more than one dirhem, can be the object of a use or of a
location without the consent of its legitimate owner (Tornauw,
' Droit Mussulman, ' page 282).' Sometimes, however, " Whatever is
found in the desert, or buried in the earth, or in the intestines of
animals, or in the bosom of waters, without its being possible
to know the owner, become the entire property of the finder " (eod.,
page 283). (6) As for the khums, to which the non-Islamite treasure
is subjected, the same author says that " khums " literally means
336 The Ottoman Land Code.
" the fifth part," which, in the cases laid down by the law, the Mussul-
mans must allow to be deducted as tax from their patrimony (Eod.,
pages 61, 62). B. Roman law. According to the definition of the
Law 31, 1, Dig. 41, 1. " Thesaurus est vetns qujedam deposit io
pecunia?, cujus non extat memoria, ut jam dominum non habeat,"
the treasure belongs half to him who has discovered it, and the
other half to the owner of the ground, or to the State if it be found
in sacred or religious ground. If it be found in another's ground
after researches without his consent, it belongs entirely to the
proprietor (compare 39, Inst. 2, 1, Lex unica, Cod. 10, 15 ; Lex 3,
10, 11, Dig. 49-14). C. French law. According to the definition
of the Art. 716 of the Civil Code (in fine) : " The treasure is anything
concealed or buried of which no one can pretend to be the owner,
and which is discovered by chance. Thus the property of a
treasure belongs to him who has found it in his own ground ; if the
treasure be found in the grounds of another, it belongs " the half
to him who has discovered it, and the other half to the owner of
the land" (see the same article). As regards objects lost, see
Art. 717 of the same Code.
Forfeiture 168. Unworthiness to inherit murder. A. Mussulman law.
by crim- rp] je Mussulmans recognise three causes of absolute incapacity to
inherit : (1) The state of servitude ; (2) the murder of the deceased,
committed by the heir; and, as regards domanial lands or
mevkufe, the Ottoman Code has added : (3) the difference of
nationality, (a) As regards the servitude, see Art. 112 and note
172 ; and with respect to the difference ol religion, see Art. 109 and
note 169. As regards the difference of nationality, see Art. 110
and note 170. With respect to murder : " He who voluntarily
has killed another cannot inherit from him. An involuntary
homicide by imprudence or awkwardrfess does not render unworthy
of inheriting; but the absence of criminal intention must be
entire " (Tornauw, ' Droit Mussulman,' page 256). . It is thus the
minor murderer who, according to the doctrine malekite, is in a
state of impuberty, is not considered as unworthy of inheriting,
for every homicide committed intentionally by a minor is always
considered as involuntary (Solvet, 'Successions Mussuimanes,' page
8). However, as regards the imputability of minors, according to
the penal Ottoman law, compare Art. 40 of the Penal Code, and
with respect to murder in general, Arts. 168, 175, 182 of the same
Notes. 337
Code. But, according to other sects, "Homicide prevents Kbifeiture
inheritance, whether committed intentionally or involuntarily or crune '
(El-Khazin, cited by Solvet, 'Sue d.,' page 7, note).
B. Roman law. He who, intentionally or involuntarily that is,
by negligence (per negligentiam et culpam suam) has caused the
death of the deceased (id egisse, ut moreretur) is considered as
unworthy to inherit, and as such excluded from the inheritance or
the acquisition of the thing bequeathed by the deceased to the
murderer, which falls to the fisc ; that is, the State.' Compare Lex
3, Dig. 34, 9 ; Lex 10, Cod. 6, 35 ; Lex 7, 4, Dig. 48, 20 ; Lex '.,
Dig. 49, 14. It is the same for the heir who does not revenge the
murder of the deceased by a judicial prosecution, or by the neglect
of whom the legal pursuit has ceased (Lex 21, 17, Dig. 34, 9;
Lex 8, 1 ; Lex 15, 22, Dig. 29, 5 ; Lex 1, 7, 9, Cod. 6, 35), unless
the heir be a minor (Lex 6, Cod. 6, 35). However, the provisions
relative to this last unworthiness are considered in countries where
Eoman law is still in force by the one party as inapplicable to-day
from moral motives (Sinteuis, * Das practische Civilrecht,' 205,
note 9) ; by the others, on the contrary, as applicable (Muehlen-
bruch in the continuation of the * Pandekten ' of Glueck, voL
xliii., page 477). With respect to other cases of unworthiness,
compare Dig. 34, 9, " de his quse ut indignis auferuntur," and Code
6, 35, " de his quibus ut indignis hereditates auferuntur," Nov. 115,
chap. 3, 13 and 15 ; chap. 4, 6, &c., &c. Compare in this
respect Windscheid, 'Pandektenrecht,' 669-674. C. French law.
Those unworthy of inheriting, and as such excluded from in-
heritances : (1) He who has been condemned for having caused
the death, or tried to cause the death of the deceased; (2) he
who has brought against the deceased a capital accusation judged
to be calumnious ; (3) the rTeir, not a minor, who, informed of the
murder of the deceased, has not given notice to the officers of justice
(Art. 727 of the Civil Code. Compare also Arts. 728-730). As
regards the incapacity of hirn who is civilly dead (Art. 725, 3 of
the Civil Code), it is known that civil death, which is the con-
sequence of a penal condemnation, established by Arts. 22, 23 of the
Civil Code, is abolished by the law of the 31st May, 1854, of
which the provisions have taken the place of the Articles
mentioned (22, 23 of the Code), and according to which only the
condemned to perpetual "afflictive" pun.shment (see Arts. 28-30
Z
338
The Ottoman Land Code.
Religious
disability.
Racial
disability.
of the French Penal Code) may not dispose of his property wholly
or in part, either by gift to living persons or by will, nor receive
on tliis ground, except it be for food, &c. (Art. 3 of the saidlaw).
However, compare also Art. 31, 2, of the Ottoman Penal Code.
169. Incapacity to inherit difference of religion. A. Mussul-
man l\w. An unbeliever, however near relation he may be of a
Mussulman, cannot inherit frpm him ; if the son of a Mussulman is
an unbeliever, and the grandson a Mussulman, this one inherits
bis grandfather" (Tornauw, * Droit Mussulman,' pages 254, 255). A
Mussulman, on the contrary, takes of the inheritance of an un-
believer the portion which falls to him by law. But with the
Sliafiites and the Azemites a Mussulman no more inherits from an
unbeliever than the unbeliever does from a Mussulman (eod.) that
which the Ottoman law has also reserved respecting land. B.
Roman law. The apostates and some of the heretics have been
declared incapable of inheriting : "ipsos quoque(that is, Manichaeos
vel Donatistas) volumus amoveri ab omni liberalitate et successione,
quolibet titulo veniente" (Lex 4, Cod. 1, 5). Compare also, as
regards the other heretics, " Ariaui et Macedonian!, Pneumatoma-
chi," &c., the Law 5 (eod.), and, as regards apostates, the Law 3,
Cod. 1, 7.
170. Incapacity of inheriting difference of nationality. A.
Mussulman law. Infidels do not inherit each other respectively,
unless they live in the same country. Mussulmans, on the contrary,
inherit one from the other, no matter whether they be or not
subjects of the same state. But the Shiites in no case regard the
difference of nationality as a hindrance to inheriting (Tornauw,
' Droit Mussulman,' pages 255, 256). B. Ottoman law. The Code
has established the inability of the foreigner to inherit the land of
an Ottoman subject. But by a later law it has been granted to
foreigners whose Government has .adhered to the Protocol ad hoc
the right of holding immovable property. Consequently, the
question presents itself to know whether the inability in virtue of
the Code can still be applicable to the said foreigners who profess
the same Mussulman religion as the deceased, or to foreigners who
profess the same religion or a different religion, not Mussulman,
as regards the deceased. The said law says nothing in this '
respect. From the comparison of Art. 2, 1, and Art. 4, with the /
said Protocol, it does not result, either absolutely or necessarily,
Notes. 339
that 'he inability must be considered still to be in force (see law Racial
No. 13, and the Protocol, Leg. Ott. Vol. I. No. S, p:ig.< 22). As *\ lit 7
the inability established by the Law was not established as an
.ssultnan law, but rather as a consequence
of the principle that foreigners in general could not have a right
to hold property on Ottoman territory, it appears that Art. 110 of
!\v has been modified as regards the said foreigners, Mussul-
mans or not. C. Roman law. According to the legislation previous
to that of Justinian, any person who has not the right of contracting,
according to the rules of the Roman Civil Law, the "commercium
juris civilis," but only according to those, of jus gentium, were
considered incapable of inheriting, whether by will or intestate,
and amongst those persons were also the peregrini ; that is, the
foreigners (compare Ulpian, xxii., 2 Lex, Cod. 7, 2). D. French
law. The provision of Art. 726 of the Civil Code, according to
which strangers had not the right of inheritance of property
situated in France but on condition of reciprocity between states,
has been abolished. In consequence foreigners have the right to
inherit in the same manner as the French. Compare Art. 1 of the
law of 1-ith July, 1819. Nevertheless, in the case of the division
of an inheritance between joint heirs, foreigners and French, the
latter will deduct from the property situated in France a portion
equal to the value of the property situated in a foreign country from
which they would be excluded on any grounds, in virtue of the
laws and local customs (Art. 2 of the said law). E. German
law. According to 3 of the Constitution of the German
Empire, the subjects of a confederate state are in another con-
federate state considered as indigenous of that state. In conse-
quence they cannot be excluded from an inheritance as foreigners
when that state establishes perhaps the incapacity of foreigners.
Compare also 39 of the law of the 21st June, 1869, concerning
the guarantee of legal assistance. As for the question to know
whether the right of foreigners to inherit as regards landed
property in the various States is to be decided by the law as to
persons, or by the real law, compare Foelix, * Droit Internat.,' private,
56 suiv., and esp. 60 ; Bar, International Privat-und Staatrecht,'
page 376.
171. Abandonment of the Ottoman nationality. The Ottoman
subject who has acquired a foreign nationality with the authorisation
2 2
34O The Ottoman Land Code. ,
<
Loss of old of the Government is considered and treated as a foreign subject
' nationality (Art. 5 of the law about Ottoman nationality, Leg. Ott. Vol. I. p. 8).
|>y acquisi- j n t hi s case tne cnan ge O f nationality does not show that it can
produce the confiscation established in Art. Ill as a consequence of
the abandonment of the Ottoman nationality. But in the case of
naturalisation in a foreign country without previous authorisation,
it will be null and void. However, the Government can declare
the loss of the quality of Ottoman subject (see Arts. 5 and 6 of
the said law). After such a declaration, confiscation is an immediate
consequence. Mussulman law. The "inheritance of him who
abandons Islamism, M\irtad, enures for the benefit of the believing
heirs, and on failure of this, for the benefit of the Imam or, according
to the Shafiites, of the Beit-el-Mal. (Compare Tornauw, ' Droit
Mussulman,' page 255.)
Lecral posi- 172. Slavery. A. Mussulman law. There are in a state of
tion of slavery only infidels made prisoners of war, so that the Christians,
the Jews, and the pagans even, who inhabit Mahometan countries
and who pay their capitation 'jezieY cannot be reduced to the
state of slavery. Nevertheless, it is actually in general use to
have in almost all Mahometan countries black slaves who have not
been made prisoners of war, but who have been reduced to this
state by cunning and violence. And it is thus that, contrary to
the fundamental principles of Islamism, children and adults of free
condition are sold as slaves. These acts on the part of Mussulmans
remain, however illegal, and cannot be protected by law. Property
in slaves, besides the direct acquisition by captivity in. war, can be
acquired in three ways : by sale, by gift, and by inheritance; and it
is a rule, as regards the sale, that the slaves may be sold in families
or separately (Tornauw, ' Droit Mussulman,' pages 222, 223). As
regards the liberation, and especially (1) voluntary liberation by
the master, compare eod., chap, ii., page 225 ; (2) the legal liberation,
page 227 ; (3) liberation by the act of the last will, page 228. As
regards the " ransom of the slave," compare chap, v., page 229 ;
invention of a fugitive, page 231 ; connection and ' procreation of
children with a female slave, page 231. The slave cannot inherit
from a free man, nor vice- versa (see page 256). He is deprived of
the administration of his property, if he have any, because it is
the master who is the manager of it (page 206). B. Ottoman law.
Notes. 341
(1) With regard to the land purchased by {permission of the master, egal posi-
the Ottoman law, on the contrary, prohibits any interference of the t ' on ot
master or his heirs. (2) It is unnecessary to say that to-day the
principles of right of Mussulman war, according to which prisoners
of war were made slaves principles quite opposed to the dispositions
of modern international law being no longer in force, the direct
acquisition by captivity of war can* no longer take place. (3) As
regards the sale of free negroes, abusively made/ by certain in-
dividuals, the authors of these abuses are prosecuted by the
authorities. As regards, then, the prohibitive measures for the sale
of slaves, compare the first section of public law ; that is, the droit
politique. C. Roman law. It is kno\yn that in the Roman
legislation the slave was considered as a res ; that is, a thing with-
out any personality ; the master had over him a right of full
property, and whatever was acquired by the slave became by
perfect right the property of his master. He could not purchase
by agreement ; only he was allowed the management of the
separate estate (peculia), of which, however, the ownership be-
longed to the master. As not having the commercium juris civilis
(see note 170 c), the slave was incapable of inheriting himself ; if
then a servus alienus was appointed heir, the inheritance fell to the
master. Compare Lex 53, Dig. 5, 1 ; Lex 5, Dig. 53, 40 ; 3, 4,
Inst., 2, 9 ; Dig. 15, 1 ; Ulpian, xx. 26 ; Gaius, ii. 185-190 ; Inst.
pr., 2, 14. And see Thibaut, ' Geschichte und Institutionen des
Romischen Rechtes,' 117-118, 245.
173. Invalidity of the sale by reason of violence. A. Ottoman Alienation
law. The disposition of the law is similar to Roman law, according S ot b 7
to which the actio quod metus causa is an action in rem scripta. It rce ' ''
is thus that the seller or his heirs (the direct as well as the collaterals,
note 100) will have the rigfet of revindication against every holder
of the land. In the same way as it results from the provisions of
the article in fine, the sale* is not void by full right, but it may be
impeached, in conformity also with the French Civil Code (Arts. 1117
and 1304), and with the dominant doctrine to-day in Germany as
regards the meaning of the Roman laws. B. Roman law. Compare
Dig. 4, 2, quod metus causa gestum erit ; Cod. 2, 20, de his quae
vi metusve causa gesta sunt. C. French law. Compare Arts.
1112-1115, 1117, and 1304.
342 The Ottoman Land Code.
<^
'Sale under*- 174. Nullity of alienation made with conditions considered illegal
illegal con- According to Mussulman law, a gift between relations is a contract
void of the class irrevocable ; and consequently it requires, to make it or
to cancel it, the reciprocal consent of the parties. Thus it is settled,
that it is not allowed, when the gift is an irrevocable contract, to
make it with conditions or for a term (Tornauw, ' Droit Mussulman,'
pages 182, 183). Probably the'- law makes allusion to this rule of
common law in the dispositions indicative of the article in
question ; see, however, Arts. 38, 39 and notes 77, 78. As to the
conditions considered iMegal in a sale, any work on Mussulman law
may be consulted.
175. Forced sale of domanial lands. The provisions of Art. 115
have been modified, in the first place : (1) in favour of the State,
by the law "on the forced sale of Mirie lands (domanial) held by
debtors to the State," dated 7. Rebiul ewel, 1279, and afterwards
they have been totally abolished ; (2) in favour of creditors of every
sort by the law on the forced sale of lands Mirie, and of land Vakf
called Musakafat and Musteghillat for the payment of debts of the
holder, dated 18. Shaban, 1288. The entire text of these laws is
given in Nos. 7, 15, and 22. It is well understood that by the
forced alienation established by the said law in favour of every
creditor, the provisions of the Land Law relative to the permission
of the authority in the case of voluntary sale has lost its previous
importance.
Conditional 176. Sale with faculty to repurchase. Conditional and hypothe-
sale, &c., cat ing alienation, or firagh bil vefa (Arts. 116-118). The provisions
of Arts. 116-118 have been in part modified, in part abolished, and
in part completed (1) by the Arts. 25-30 of the Tapu Law ; (2) by
the law about the forced sale of land!' Mirie and Mevkufe mort-
gaged for the payment of the debt in case of the decease of the
debtor, dated 23. Eamazan, 1286 (see 'No. 15) ; and (3) by the
law on the hypothecation of property, dated 21. Eebiul achir, 1287
(No. 16).
A. Formality extrinsic (of the conditional and hypothecating
alienation ; that is, of the legal act " firagh bil vefa," alienation until
payment). The Art. 116 has been completed by the Arts. 26, 30
and the supplementary Art. of the Tapu Law (see again Art. 1 of
Notes. 343
the law of the forced sale of hypothecated property) ; compare,
however, the said law " on Hypothecations in general."
B. Conditions and procedure. As regards the procedure to be Conditional
followed for a forced sale : (1) during the life of the debtor, the *
Art. 117 has been completed by the Art. 27 of the Tapu Law:
(2) after the decease of the debtor, the Art. 118 has been modified
by the Arts. 28 and 29 of the same Law, but the provisions of
these articles have afterwards also been essentially modified by
the law on the forced sale of hypothecated property, see Arts. 2,
4, and pr. of the law.
C. Mortgage in general. As to the formalities and conditions
of the mortgage of landed property other than lands Mirie, see
the said Uw on the mortgage of land. As regards the institution
sui generis of " firagh bil vefa," which, from a certain point of view,
may be considered as a sort of voluntary and singular transfer of
property made by the debtor to his creditor " cessio bonorum
voluntaria et singularis," compare Dig. 43, 2 Cod. 7, 71, and Arts.
1265-1270 of the French Civil Code, and which, from another
point of view, on account of the modifications made, is become an
institution almost hypothecating. Compare D'Ohsson, ' Tableau
de 1'Empire Ott.' .(vol. vi., page 73).
177. This act of procuration made before the kadi is designated Trustee foi
by the expression " Hudjeti vekialeti devrie " (compare Belin, who sale -
mentions a document of this sort, page 239 ).
178. See note 176, on the modifications made in the Arts.
116-118.
179. See also note 176.
180. Actio doli (between seller and buyer). A. Mussulman Sale got
law. The contract of sal? forming part of the irrevocable contracts by fraud
cannot be revoked but by^the mutual consent of the contractors. V01 '
But it may be attacked on account of discovered fraud (chior ghebn).
When in the sale of the thing the seller has made use of deceit and
fraud, the buyer has the right of cancelling his engagement as soon
as he discovers the employment of these means (Tornauw, ' Droit
Mussulman,' page 129). B. Ottoman law. The text of the Art.
119 says, " Tagrif ve gabni fahish," which, according to
the Greek translator, signifies the fraud of the seller who has
represented the object of the sale as having qualities which
344 The Ottoman Land Code.
Sale tainted it had not, or who has sold the object at a price above its real
'i Vi yoid iaU(i Value ^ The Ottoman Codes >' b y Nicolaides, page 459, note 1).
It is for this that in the note 78, page 86, it is said that the sale
can be cancelled on account of deceit or fraud regarding faults
justifying annulling the sale. 2. According to the Tapu Law
(Art. 24), any difference on account of deceit or fraud, as well as
any other suit concerning domanial land, which are decided by
religious law, are to be heard in presence of the administrative
functionaries of 'the Finance who represent the owner of the land
(see note 130, 2, and Art. 1 of the said Law). In the same way
. in suits relative to mortgages (see Art. 30 of the same Law).
This functionary may, then, be considered as a sort of Public
Ministry who protects the rights of the State (compare by analogy
Art. 83, 1, 84, and 112 of the Civil French Code of Procedure).
C. Roman law. As regards the sense of dolus as a fact, meaning
the nullity of an agreement in general, compare Lex 1, 2, Dig.
4, 3 ; Lex 7, 9, Dig. 2, 14 ; Lex 43, 2, Dig. 18, 1. As regards
the fraudulent sale of a piece of land: "If the buyer has been
deceived as to the quality of the acres of land sold, he has the
action of the purchase" (Lex 34, Dig. 19, 1). D. French law.
(Compare Arts. 1109, 1116, 1117, 1304, and 1658 of the Civi 1
Code.)
181. Alienation and donatio mortis causa. A. Mussulman
law. When the giver makes a contract of gift during an illness,
this act preserves all its validity after recovery ; but if the giver die
from the disease during the existence of which he has consented to
the contract, the heirs have the right to keep at least two-thirds of
the inheritance and to leave to the donee at the most one-third "
(Tornauw, ' Droit Mussulman,' p. 183). B. Ottoman law. (1) The
Code treating in general of alienation iportis causa does not give
anything in this respect in favour of the heirs, as the common law
of the Mussulmans does. (2) As for gif^s between living persons,
see Arts. 36, 38-39, notes 71 and 78. (3) As regards gifts of
domanial land made by foreign subjects possessing the right to
hold landed property, compare the law granting to foreigners the
right of property, Arts. 4-5 (No. 13). C. Roman law. Com-
pare Dig. 39, 6, de mortis causa donationibus, and Cod. 8, 57, de
donationibus causa mortis. Amongst the various kinds of gifts
Notes. 345
on account of death, only that which is made " cum quis immi- Donatio
nenie periculo coinmotns <loiuvt v (Lex 2, Dig. eod.), ti at is donation mortis
on account of imminent danger, corresponds exactly to the Art. causa -
120, which requires a state of mortal illness. D. French law.
Compare the provisions relative to testaments, by which alone is
gratuitously made every disposal of the property of a person for
the time he will no longer exist. See Arts. 893, 895, 907 and
following ol the Civil Code.
182. According to Mussulman law, one can consecrate only things Only full
over which he who consecrates has an incontestable right of property owner can
(Tornauw, ' Droit Mussulman,' p. 196). The holder of a domanial ^ ate
estate not having then a right of property over it, must first
acquire by sovereign patent the full ownership of the land he
wishes to consecrate.
183. Ecclesiastical property. A. Canonical law. There are Land held
two categories of objects belonging to a church : (1.) Those which to religious
are immediately destined for worship (for example, the church) and uses-
consecrated with particular solemnity; that is, the sacred objects
(res same) which, according to their solemnisation, are either res
consecrate or res benedictaj. To these sacred objects the laws of
property are inapplicable, because they are res extra commercium ;
their dishonour is prohibited under penalty even by political law.
(2.) The other things of the church have not such a destination for
the divine service, but they are destined only for the external
wants of the church. They are in part assimilated to the secular
property, with the difference only that they are subjected to a
particular superintendence, and their alienation is difficult. They
are called ecclesiastical prop'erty in a particular sense, " res ecclesi-
astics in specie, patrimonium aut peculium ecclesire." This
distinction is also observed by the Protestants. The alienation of
property of the la.>t category is also permitted only from imperious
necessity. (Compare Walter, ' Kirchenrecht,' 267, edit. 14, by
Gerlach, 1871.)
As regards the exceptional cases, in which an ecclesiastical landed
property can be alienated according to canonical law, it is established
in ecclesiastical law that only for legal motives and after certain
formalities can the alienation be allowed. (1.) Legal motives are
346 The Ottoman Land Code.
r
t . considered, as such, an absolute necessity, as payment of ecclesins-
tical debts, ransom of prisoners of war, maintenance of the poor
during a time of famine, for which cases even the res consecrate
are alienable ; or an evident advantage which is realised for the
Formality church by such an alienation. (2.) Formality. The bishop cannot
of sale. grant the permission for alienation until after hearing the parties
interested in this respect, and^ after having received the assent of
the ecclesiastical council of the diocese (synodus dicecesana), in
the direction of which it is considered as an episcopal se
With the Protestants in Germany the consistory or the sovereign
carries out the duties'of the bishop with regard to this*' Compare
(a.) As regards necessity: c. 70, c. xii. g. 2 (Ambros. a, 377);
c. 50, c. xii. g. 2 (Concil. Garth, vi., a, 419); c. 21, c. de
eccles. (1, 2) ; Nov. 120, c. 9, 10, c. 14, 16, c. xii. g. 2 (Greg. 1,
a, 597) ; c. 15, eod. (Idem, a, 598) ; c. 13, eod. (Goncil. Constant.
iv. a, 869). (6.) As regards the advantage : c. 52, c. xii. g. 2 (Leo,
1, a, 447) ; c. 20, eod. (Symmach. a, 502) ; c. 1, de reb. eccl. non
alienandis in vi. (3, 9). (c.) Consent of the council eccl. : c. 51,
c. xii. g. 2 (Concil. Agath. 506) ; c. 1, 3, 8, x. (3, 10) ; c. 2, x. (3, 24) ;
c. 2, de reb. eccl. non al. in vi. (3, 9). See Walter, eod. 253, and
uotes 2, 3, and 5. For those who wish to consult this work,
we remind them that it has been translated into Italian and
Spanish ; there is also a translation of the 8th edition in French, by
Eougemont, with the title ' Manuel du Droit ecclesiastique de toutes
les Confessions Chretiennes,' 1841. It seems that the new French
translation which the author had promised in his 13th edition has
not been published.
B. Civil law, Ottoman. Like the landed property of the
political communes, in the same manner the landed property of
the ecclesiastical communes that is* those which belong to a
church or monastery, and which are inscribed in the Registers of
the Imperial Archives are subject to the same dispositions as
regards their inalienability. As is seen,, the political Ottoman law,
as regards land, establishes an absolute prohibition of the alienation
of a property registered in the Imperial Archives, whilst according
to the ecclesiastical canons the alienation can take place at least ex-
ceptionally. It is quite natural that an alienation of landed property
without an Imperial authorisation does not seem to be able to have
any effect as regards the political law, although the alienation be
Notes. 347
conformable to the ecclesiastical laws. As to the ]>olitical guarantee, .^
to the administration of the property in question, as wi-11 as lor all
that is relative to it, compare the chapter, ' Droit public eccle'sias-
tique,' classed in Leg. Ott. Vol. II. ' Droit public.'
184. Land formed after the retreat of the water of a lake or of a Reclaimed
river. A. Roman law. According to the Roman laws an island lands,
which forms itself in a public river'becomes the property of the
bordering proprietors ; a line drawn in the middle of the river forms
the limit of their domination ( 22, Inst. 2. 1 ; Lex 7, 3, 4 ; Lex
29, 30 pr., .-2 ; Lex 56 pr., 65, 2, 3, Dig. 4?, 1 ; Lex 1, 6, Dig,
43, 12). It is the same if, by the abandonment of the bed of a
public river, new land has been formed ( 23, 24, Inst. eod. ; Lex 7,
5, 6; Lex 30, 1, 3 ; Lex 38, 56, 1, Dig. 41, 1) ; otherwise, in
private waters as well as in lakes, compare Windscheid, ' Pandekten-
recht,' 185, notes 1-2. As regards new land formed by the
alluvion, that becomes the property of him from whose land the
alluvion has taken place ( 20, Inst. eod. ; Lex 7, 1 ; Lex 56 pr., Dig.
eod. ; and the same author, eod. note 3). See also the above note 124,
of which the laws there indicated must be corrected as follows : Lex
7, 6, Dig. 41, 1 ; and Lex 30, 3, eod. B. French law. The
islands and banks w r hich form themselves in the beds of streams or
navigable rivers belong to the State if there be no contrary title
or prescriptions (Art. 560 of the Civil Code); but those which
form themselves in rivers not navigable belong to the bordering
landholders, in accordance with the Roman law (Art. 561). Com-
pare in general Arts. 556-563 of the same code.
185. Waters drinkable and for irrigation. A. Mussulman law. Water for
The springs which show themselves at the surface of the ground drinking
without man's aid and which form the rivers, the rivulets, and the
streams, cannot be the property of individuals; many jurists
question whether even the Sultan has the right to grant the
exclusive use of it to certam individuals (Tornauw, c Droit Mussul-
man,' page 285). B. Roman law. In general, running waters
(aqua profluens) are considered as res communes omnium ( 1,
Inst. 2, 1), and consequently the State could only regulate the use
of public streams (Lex 17, Dig. 8, 3 ; Lex 2, Dig. 43, 12 ; Lex 1, 42,
Dig. 43, 20). Nevertheless, the streams which do not flow constantly
are not subject to public use : " Fluminum quaedom publica sunt,
348
The Ottoman Land Code.
quredam non. Publicum flumen esse Cassius definit quod perenne
sit" (Lex 1, 3, Dig. 43, 12). "Item fluminum qiuedimi sunt
perennia, quaedam torrentia. Perenne est, quod semper fluat,
devaos (torrens), 6 xeipdppoos" (Lex 1, 2, eod.). As regards
rivulets, the doctrine is not unanimous; many jurisconsults pretend
that these are not excepted from common use. (See Windschcid,
* Pandekt.' 146, note 7, wtyo, on the contrary, considers them
as belonging to private property.) C. French law. "Streams,
navigable rivers, and the seashore are considered as dependencies of
the public domain " (Art. 538 of the Civil Code). With respect to
the regulations of water for irrigation, compare the laws of April 29,
1845, and of July 11, 1847, on irrigation ; compare also the Law of
June 10-15, 1854, on the free flowing of water from drainage.
186. Kyuk terke, " what remains of the root ; " fields of which the
crop is in course of development, or those where something has been
left after the harvest (Belin).
187. In virtue of Art. 261 of the Ottoman Penal Code, besides
the condemnation to pay damages, those will be punished by fine
who take their beasts to cultivated land belonging to others.
Administrative measures- besides have been taken in this respect.
(See the chapter "agriculture," classed with administrative law.)
Compare also Art. 479, 19, of the French Penal Code.
Boundaries 188. Boundaries of towns. The new delimitation of towns and
villages probably appears to have no other view than that of
the exact delimitation of private property and of the domain of
the State. (Compare Art. 2, 1.)
189. See note 66 and Art. 34.
190. See the notes 52 and 160, and lirts. 24, 101, 103, and 105.
Khas. 191. The domains (khas) were assigned in every province to the
post of Governor-General instead of pay to this functionary.
(D'Ohsson, 'Tableau de 1'Emp. Ott.' vol. fli. page 379.)
Vinghana. 192. This expression is Bulgarian : derived from bachta, father ;
bachtene means the patrimonial property -which conies from the
father (Belin, 316, note 1).
Kyuk
Terke.
Law
against
mean* auer. irf urs
:
;
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" L i-. _.;..": -.'.u:-.: ::' -. .
Oflfcrf~ii
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:c - :,.:.;
lit be ised in pnn^c^. A*
mmjorsy compare Ante. 301 no 3:3: of ciie Tipi Law.
IS9-,. M ;Le. A. Odteman law.
rytiniiowTuastaf i
|(&to St EefeL ul adiir r L2SQ)
0M
;
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ciocs . 3. 2,.Tnaz uv. ABflbpgjI -Jie iea u* ^4il ^ :^ *ii.:r4s .
1 . l^U ::i^:-L :- !_._- I..I 1, O'. 1-^ t.l. 1 . -_-. --"-,:-.: L-i
wrsIi.Ira.WTL -;ci :bi ^r.Ti^ .ii.dizarL..:E. $ 1. IZSIL ' 1 : 1^ -t pr. ;
- -
oC. 5 -t. E"_. -tl. 1. Boffl :':c -ui-fr "niil-Lz^:* ^i-f ~t*r~ : :^
350
The Ottoman Land Code.
Sheikh ul
Islam.
200. See Article 4, 2.
201. Sheikh ul Islam, as supreme interpreter of the religious law,
being at the head of the body of Ulemas that is, the judges (kadi)
and jurisconsults (mufti) of the religious law and of the ministers
of the religion (imam), he is invested with the supreme spiritual
dignity in the State, as the Grand Vizier is invested with the
temporal dignity. He is th? superior Patriarch, the pope of the
Ottoman Empire, and he is distinguished like them by special
honorific titles. Although the supreme judge still, as mufti of
the capital, he has no judicial vote, but only consultative, which
determines the decision of the judge. But he decides as judge
only in the cases sent to him by the Sultan. (Compare D'Ohsson,
'Tableau de 1'Empire Ott.,' vol. iv. part 2, page 506; and Yon
Hammer, ' Des Osmanischen Eeichs-Staatsverfassung und Staatsver-
waltung,' vol. ii. pages 372-375.)
202. Divani-humayun kalemi. This chancery of State, which
is attached to the Ministry of Foreign Affairs, is subdivided
into three offices, of which one, the Beglik Kalemi, is the one in
which are drawn up all the documents and constitutions of the
Empire. It contains the copies of the Firmans and the archives of
the laws (kanunname) and of the treaties, with the Register of all
the firmans and berats which have been long since drawn up, so
that it contains the copy, the archives, and the Register. (Com-
pare the work of Von Hammer, ' The Constitution and the Political
Administration of the Ottoman Empire,' mentioned in the pre-
ceding note, vol. ii. pages 119-120.)
Explana- 203. Archives of the State (see note 133). It is to be observed,
toI 7- in finishing these notes, that we have not had in view to give an
explanation of the Code, but, as is seeji by its comparison to Roman
law and to French legislation, to facilitate the appreciation of the
provisions of the Code in a legislative point of view.
Divan
Humayun.
Notes. 351
Notes to 2. *
1. As regards the distinction between land Mevkufe' and the Distinction
other properly called Vakf lands, compare Art, 4 of the Land Law, between
notes a, b, and 20.
2. Titles of possession of foreigners. As regards titles of Title of
possession or of property in general of strangers,, whose govern- alien -
ments have adhered to the protocol relative to them, compare the
circular of the Sublime Porte to the heads of the legations con-
cerning " the exchange of ancient title-deeds for new," showing the
true nationality of the holders (Leg. Ott. Vol. I., No. 9, page 25).
After the effect of the said circular, the journal ' Jeridei Havadis '
has just published, in this respect, an official communication which
by a Vezirial order to the governors-general of the vilayets, dated
" 1 Djemazul achir, 1289 " (24 July, 1872) has also been published
in the provinces.
Here is the translation of the communication according to the
journal ' Turquie.' The subjects of the Powers who have signed
the arrangement published on the 7th Safer of the year 1284 of the
Hegira who would wish to obtain definitive title-deeds of property
in their own name in exchange for the title-deeds which have been
previously delivered to them, are informed that they can make
this exchange within a year from the 13th August, 1872, up to the
end of the month of July 1873. They will have to pay only the
third of the tax imposed on the new Hodjets (title-deeds). This
delay expired, they will have to pay to the Treasury the whole of
these dues, without any reduction and according to the tariff in
force. Compare also not$s a, b, and Art. 3 of the Land Law and
Art. 8 of the new instructions concerning Tapu operations.
4
3. Functionariey of the Tapus. The Eegulations of the Tapu Tapu
were published at a time Vhen the previous administrative regime officers,
was in force, according to which, besides the Yali and Mutessarifs,
the officers ad hoc of the financial administration, administrative
councils (mejljs) were established in each Sanjak as also in every
Vilayet. These functionaries of the financial administration of the
Vilayet and the Mute&arifs of the Sanjaks, as representing the
352 The Ottoman Land Code.
Tapu owner, the State, have been entrusted with the granting domanial
Officers.' lands to individuals. In a similar manner tho said councils to
whom had been confided at the same time the jurisdiction and the
administration were entrusted (1) with the previous collection of
the fee paid to the State at the sales, grants or hereditary transfers,
which were afterwards passed before the said functionaries; and
(2) with the putting up to auction the lands belonging exclusively
to the State (Art. 18). According to the present administrative
regime established by the law of the vilayets (see the administrative
law), administrative councils distinct from the judicial councils
that is, from the ordinary tribunals are also formed in each sanjak
kaza, and in the capital of the vilayet, which are also entrusted
with all that concerns the revenue of the Tapu (Arts. 14, 24, and
48 of the same law), and by whose medium, consequently, the put-
ting the said lands up to auction is done. According to the same
law, the finances and the accounts of the Vilayet are entrusted to a
functionary of the Ministry of Finance, bearing the title of Defterdar
(director of the finances), Art 7 ; also the finances of the Sanjak
are confided to the Mouhassebedje (sub-director), and those of the
Caza to the Caimacan (sub- governor). These then are the
authorities before whom all acts relative to an alienation, &c., were
to take place. But by the Kegulations about the general registra-
tion of the land and the population, of the 14th Djemaziul achir,
1277, functionaries ad hoc for the drawing up of the Cadastre
have been appointed in the departments to which, after the pro-
mulgation of the law of the Vilayets have been assigned the
acts of granting lands, but only until the finishing of the
Cadastre (Art. 1 of the new instructions concerning the Tapu
operations, No. 18). In every capital of the Vilayet there has been
established a director of the archives, a sub-director, and a record
office with seven secretaries, entrusted with the affairs of the sanjaks
and considered as members of the administrative councils relative
to affairs about land (Art. 13 of the said instructions). For all
that concerns the accessory modifications made in the Regulations
and other instructions of the Tapu on account of the new ad-
ministrative legislation, compare the said " new instructions."
4. Functionaries of agriculture. In each vilayet the care of
watching over the interests of agriculture and commerce is confided
Notes. 353
to a functionary ad hoc (law concerning the Vilayets, Art. 12), who Officer for
however is not included amongst the ordinary members of the ad- ^gricul-
ministnitivc council (Art. 13, eod.). It is to be remarked only that ure ' c '
suits between agriculturists on account of cultivation or damage
done to sowed lands, are prosecuted before the competent authorities
in presence of the said directors.
5. See the note 133 of the Land* Law respecting the Imperial
Archives of the capital, of which there is question in the article.
As regards the archives of the Vilayets (see note 3 and Art. 22).
6. See the law on the extension of the right of inheritance, which Formalitie:-
has modified Arts. 54-55 of the Land Law, in the note 100 of * nd fees
the Land Law. If the delivery of the title-deeds, on account of a C es S j on
transfer has not taken place in time, the tax 5 per cent. (Art. 8)
will always be paid in a possible case of sale ; see Arts. 10 and 13
of the Regulations (No. 3).
7. As regards the meaning of the term " hypotheque," compare
note 176 of the Land Law, and Arts. 25-30, and notes.
8. Compare Art. 36 of the Land Law, note 74.
9. The heirs of the owner must have a new title-deed of owner- New title-
ship (Tapu) in their name, and pay the fixed fee for the hereditary de ? d ^ or
transfer of the lands. It is this violation of the law (and not the eir "
irregularity of the forms) of which there is question in Art. 10.
Compare also note 6 and Art. 13 of the Instructions there
mentioned.
10. Compare Arts. 77 in fine and 78 of the Land Law.
.11. Compare Arts. 3 and 129 of the Land Law.
12. See also Arts. 9-10 ofjtoe Regulations (No. 3).
13. Compare also Art. 5 of the Regulations (No. 3). If these Waste
lands are planted with cotton, the owners enjoy, besides, an lands,
immunity for five years ; compare a transitory law, which is fixed
to be in force for ten years, dated "26. Redjeb, 1278," on the
measures taken in favour of the culture of cotton.
14. Compare Art. 10-i of the Land Law and note 162.
2 A
354 TJie Ottoman Land Coae.
Lands hold 15. By the law on the extension of the right of inheritance to
} r Y 1 1 1 1 " perial the collateral relations of the deceased, as regards land Ernirie' and
Mevkufe', it has been ordered that the provisions of the said law be
applied to the lands and chiftliks held in virtue of imperial title-
deeds of property, mulknamei humayun (see Art. 4 of the said
law).
16. See note 3.
17. See also note 3.
18. Compare, as regards the right of preference, Arts. 41, 42,
44, 45, 59, modified; 64, 83, 112 of the Land Law, and the notes
83, 106, 107, 112, 116 (eod.). See also Art. 15 of the Regulations
(No. 3).
19. Compare Art. 2 and 'notes and Chapter IV. Mahlulat
vacancy, Art. 59 modified, and following, of the Land Law.
20. See note 3 ; compare also Art. 15 of the Instructions (No. 4).
Reward for 21. As regards the information of Vakf property held unjustly -
disclosure by individuals without any knowledge on the part of the pious
foundation ( of the Vakf ) to wnich it; belongs we must discriminate :
(1) For Mevkufe lands the informer receives as remuneration 5 per
cent, on the amount of the value of the land, for urban lands
five per thousand (compare an official proclamation). Within
the circumscription of the sixth municipal circle of the capital, the
fee Ichbarie belongs to the said municipality, whose Council must
give notice of the properties which are returned to the Vakf (com-
pare Art. 62 of its general Eegulations). (2) In the provinces the
informer receives 1 per cent, (compare 1 Art. 45 of the Regulations,
on the attributions and duties of the directors of the Vakfs
situated in the provinces of the 19. Jemaziul akhir, 1280, classed
in the Administrative Law, under the ^i tie "Administration of the
Evkaf," see note b, 1, of the Land Law).
Superses- 22. This system has been modified ; instead -of the certificate in
sion of
certificate.
slon question as a provisional title until the sending of the title-deed <i
possession by the Record Office of the Imperial Archives, there is
delivered to the possessor a printed indicative table taken from the
Notes.
iche (see the Preface to the Regulations, No. 3; ^
compare notes 24 an.
-.ote3 in l:
he Imperial Archives of the Empire in the capital,
and not at the Archives of the Vilayets (compare note 133, page 307,
and note 5).
regards the functionaries ad hoc, compare note 3. As Provision
regards suits, see also Art. 30, and notes 8 and 32. It is to for I >a - v T
be observed that no proceedings in the Courts nor any act of taxes>
any landed rroperty whatever before the functionaries
ad hoc can take pla-.x- if the interested has not proved by the
' ad hoc the payment of the taxes (compare Art. 3 of the
Part of the Kegulations of the Cadastre mentioned in the '
note 3) ; also, every Ottoman subject in general, and in the places
where the Cadastre is finished every tax-payer, must in such a case
produce his personal certificate (noufous-teskeressi) to prove his
identity and the payment of the dues on his land and revenues,
" which according to this system is to be vise'ed on the back of the
document (compare the ordinance on personal certificates ci
in the Administrative Law under the title " Cadastre," Le>. Ott.
III.).
26. Compare the Arts. 116-118 modified of theL and Law. and Mortgage,
on the modifications made to it, in note 176. ' It must be observed
that by the terms "hypetheque" and " hypothe'quer ?J is intended
the institution " firagh bil vefa," according to which, as seen in
the Art. 27, the creditor ^innot during the lifetime of his debtor
prosecute him for the compulsory sale of the mortgaged lands,
except in the case where the debtor has appointed in the document
ad hoc an attorney <for this purpose.
27. See Art. 116 of the Land Law and the preceding note.
28. The law intends here the Councils of the previous administra- Court* f.>i
tive regime ; but according to the present regime, which prohibits mortgage
all interference of the A'^nimstrative Councils in the judicial affairs ma * ters -
(Arrs. 14, 34, and 48 of the law on the Vilayets), the question pi _
356 The Ottoman Land Code.
Courts for % itself whether these Councils are still competent in this respect,
matters 86 OI lf ^ be ^ ordinar y Courts.
According to the law on hypothecation of property (No. 16),
the ordinary Courts of the sanjaks and the kazas are competent to
give the authorisation to mortgage a property in virtue of which
the Local Civil Eeligious Court (mehkeme) delivers the document
(hod jet) of the mortgage act. r On account of the generality of the
expressions of this law, its provisions might be considered as relative
to domanial lands ; but on considering that every act of alienation
of mirie lands is made before the functionaries of the Tapus (note 3),
even after the promulgation of the law of the Vilayets (compare
Arts. 1-2 of the instructions concerning Tapu operations), it must
be admitted that the act of mortgage must be made before the Ad-
ministrative Councils in presence of the functionary ad hoc, and not
before the Courts (compare also the law on the forced sale of mort-
gaged property, both Mirie and Mevkufe, for the payment of the
debt in case of the death of the debtor, No. 15). On the other
duties of these Councils compare note 3, above. But if such a
voluntary jurisdiction belongs to them, it is not the same as regards
the litigious jurisdiction, that is, suits between debtor and creditor
about mortgage. In this case it is the ordinary Courts to whom the
competency belongs, and not to the Councils, who by law are
prohibited from all interference in judicial affairs. (See also Art. 30,
and note 32.)
29. By the provisions of this article those of Art. 117 of the Land
Law have been completed.
Sale of 30. The Art. 28 has been modified by the law on the compulsory
mortgaged ga ] e Q f j^i r ^ an( j Mevkufe, &c., property, in virtue of which,
after the decease of the debtor, the forced sale of the mortgaged
property is permitted (compare especially Arts, 2 and 4 of this law,
No. 15).
Liability of 31. Compare also Art. 4 of the law mentioned in the preceding
ot er an s no ^ e> However, if the creditor holds an executory document, we
gagor. can sav ^at, according to the new law on the compulsory sale of
landed property (No. 22), the sale of tba other lands held by the
deceased may be proceeded against by the mortgagee creditor,
Notes. 357
because the law makes no distinction between the cases of the
-e or the existence of the debtor, as it does in mortgages.
32. As regards the voluntary jurisdiction of the Administrative Court for
Councils in this respect, see note 28. By Cuncil the law means mortgage
also here the local administrative according to the previous m
regime, to which Council was attached both the jurisdiction and the
administration (note 3), but after ttte separation of this authority
the jurisdiction in this respect belongs to the ordiuary tribunals
(see the said note 28 ; compare also note 25).
33. See note 3.
34. As regards the judicial or vulgar sense of the term (chiftlik), Chiftlik.
as also the right of succession concerning them, see Art. 131 of the
Land Law. With respect to legislation about minors, compare the
Arts. 18, 20, 50-53, 61, 63, 65, 76, and the respective notes of the
Land Law.
35. Mevkufe lands, depending on the public domain and Mevcoufe.
assimilated to Mine lands. Compare Art. 4 of the Land Law ; see
above, Art. 30.
Notes to 3.
1. See No. 1.
2. See No. 2.
3. That is the Tapu Law. As regards the Supplementary
Instructions (see No. 4). .
4. The public functionaries and all other individuals who are Liability of
guilty of an act contrary to the arrangements relative to the putting officials,
up to auction and to the adjudication of the revenues of the State,
or in opposition to the other provisions of the law which governs
the farming of the revenues, will be dismissed from their functions
and be punished by imprisonment of one to two years or by exile
of two or three years. They will be required to indemnify the
public treasury for the losses which this fact may have caused
(Art. 88 of the Ottoman Penal Code ; compare, however, Art. 83 of
358 The Ottoman Land Code.
the same Code as well as the Art. 88, and the note 141 of the Land
c Law).
5. Compare Arts. 3 and 129, and notes 13, 14 of the Laud Law.
6. Compare Art. 7 of No. 4.
7. Compare, in regard to joint possession, Arts. 15 to 19, 2, 35,
41, 43, and 59 ; 8 of the Laud Law, Art. 8 of the Instructions
(No. 4).
8. Compare Art. 10, and notes 6 and 9, of the Tapu Law ; Art. 5
of the Instructions (No*. 4).
9. That is to say) according to the ancient administrative
division of the Empire. As regards the present, compare the law
of the \ 7 ilayets and note 3 of the Tapu Law.
10. That is the Instructions (No. 4).
Notes to 4.
1. See No. 1.
2. But the promulgation of this Law took place the 7th Ramazan,
1274 (21st April, 1858).
3. See No. 2.
4. Alienation of land. Compare Art. 36 and following of the
Land Law, Arts. 3-4 and 6 of the Tapu Law, Art. 2 of the Regu-
lations regarding Tapu Seneds, and Art. 3.
5. Hereditary transmission. Compare 54 and following of the
Land Law with the respective notes, Arts. 5 and 8 of the Tapu
Law, and Art. 4.
6. Granting of lands. Compare Arts. 103-105 of the Land Law,
Arts. 12-13 of the Tapu Law, Art. 5 of the Regulations regarding
Tapu Seneds and Art. 3 of No. 18.
7. Delivery of title-deeds to those who have none. Compare
Art. 11 of the Tapu Law, Arts. 1, 9, 10 of No. 18.
8. Exchange of old title-deeds against new ones. Compare the
Notes. 359
articles pointed out in the preceding note. As regar icrs, f
comi ;'U Law.
. Compare Art. 47 of the Land La
i the fixin-j: of th boundaries bet\
seller and buyer. See also Art. 4 of Xo. 18.
If. Chiftlik. Compare Art. 131 of the Land Law. Arts. 3:
of the Tapu Law, Art. 6 of Xo. 3.
11. ilk (Art. 29 of the Land Law) and woods destined Woods,
for firewood and held by Tapu (Art. 30 f the same Law). On
these kinds of woods a rent is imposed (ijarei zemin) equivalent to
the tithe, whilst other woods or private gardens are subject to the
legal tithe (Arts. 25, 28 of the Land Law).
12. Khirmen, or space for mills and threshing-floors. Compare
Art. 34 with note 66 of the Land Law.
13. Ground for sheepfolds. Compare Art. 94 of the Land Law.
14. Land subject to a fixed payment. Besides the lands mentioned
in the preceding notes (10-13), even the oper spaces used ah antiquo
as market-places and fairs are also subject to a fixed payment
(compare Art. 95 of the Land Law).
15. Place of encampment for beasts : Compare Art. 24 of the Land
Law regarding those which are held by private individuals by Tapu
title, and Art. 101 of the same Law as regards those which belong
to a commune.
16. Pasturages as dependencies of Chiftliks. Compare 99 of the
Land Law.
17. Compare the prec^difig note.
18. Compare Art. 76 of Jhe Land Law, and Art. 8 of the Tapu
Law.
19. Terres mortes (dead* lands). Compare Art. 103 of the Land
Law, Art. 12 of the Tapu Law, Art. 5 of the Regulations regarding
Tapu Seneds, and note 6 of Xo. 4.
20. See note 4.
21. Exchange of lands, Compare Art. 36 of the Land Law with
Note 74, Art. 7 of the Tapu Law.
360 The Ottoman Land Code.
22. Compare note 5.
23. Compare Art. 10 of the Tapu Law and note 9 eod., Art. 13
of No. 3.
24. Eight to Tapa. Compare Art," 59 modified and notes
100, 106, and Articles pointed out in note 140 of the Land Law.
25. Lands fallen to the State (by escheat). Compare Art. 59
modified, and following of the Land Law; Art. 18 of the Tapu
Law ; Art. 15 of No. 3. Compare also note 19 of the Land Law.
26. Clandestine possession. Compare Art. 77 of the Land Law,,
and Art. 4 of No. 3.
27. Compare Art. 2 of No, 3.
Notes to 8.
1. See note 4 of No. 3.
2. As regards vakf houses, compare No. 23,
Title-Deeds 3. In virtue and in consequence of the arrangements contained
of Vakf j n ^ ne Instructions in question, the Ministry of the Evkaf has
property. published the fo n owmg notification.
NOTIFICATION CONCERNING THE TITLE-DEEDS OF VAKF
PROPERTY.
To have the benefit of dedicated property (vakf), urban or
rural, it is necessary as much after the civil law as after the religious
law, to provide oneself with a permit emanating from the manager
of the competent vakf, so that if the holders of lands dependent
on a vakf, and held by inheritance, by purchase, or even for any
other reason, have not an official document validating their right of
possession, they will be obliged to obtain such, a title-deed. This
same regulation is applicable to proprietors, by virtue of a hojet,
of buildings, vineyards, and trees, which are on vakf lands. These
proprietors must furnish themselves, if they have none, with a
correct permit for the dedicated lands, where the said buildings,
trees, &c., are situated. The holders of title-deeds emanating from
any other authority than the manager <?f the vakf, will also be
obliged to obtain correct title-deeds as the law directs. In order to
Notes. 361
facilitate and secure at the same time the service there must be Title-deed*
given to those who have a right to them, certificates detached & Vakf
from the registers, with counterfoils which have been sent to all P r P r
the managers of vakfs, until the sending of the definitive title-
deeds by the Central Treasury of the vakfs. These certificates
will be filled up in the way previously indicated. On the arrival
of the definitive title-deeds they wijl be delivered to the holders of
the certificates, and these will be collected and sent to the Treasury
of the vakfs. Those persons who for the first time obtain vakf
title-deeds will pay the legal fees according to the nature and
value of the property they hold; they will pay besides three
. piastres as cost of the paper, and one piastre as fee of the office.
The holders of valid title-deeds, bearing, that is, a known seal, who
wish to exchange their title-deeds against new ones, will also pay a
fee of three piastres as cost of the paper, and one piastre as office-
fee. They may thus have vakf title-deeds according to rule.
The holders also of title-deeds emanating from the Treasury of
the vakfs, and having at its head the Tughra, may also exchange
their title-deeds, which are no longer in force, against new by
paying the above fixed fees.
He who gives information of dedicated lands held without the
knowledge of the competent vakf will receive as a recompense a
fee of five per cent, on the sale by auction of the said lands. As for
he who informs as to urban property, which falls to the vakf by
the extinction of the owners, he will receive as a recompense five
piastres per thousand.
The fees received, as well as the three piastres as cost of paper
and one piastre for office-fee, will be noted on the certificates
given to the holders ; it is formally prohibited to take anything
beyond the said fees. He who infringes these regulations will be
severely punished.
The provisional certificates bearing the seal of the vakf which
have been already delivered against payment of all the legal taxes
to those who have a right to them to be in force until the arrival
of the definitive title-deeds which will be delivered to the holders
of rural and urban property, will not be replaced by the new
certificates which have recently been sent, but they will continue
to be in force until thCjarrival of the definitive title-deeds sent by
the Treasury of the vakfs.
362 The Ottoman Land Code.
He who inherits, from his father or even from another relation
urban or rural land, and who takes possession of the said land
without having recourse to the competent authority, and afterwards
applies to the said authority to sell his land, will pay, as a sort of
fine, double fees.
Those who, after the publication of the present notification and
the sending of detailed instructions to the directors of the
vakfs neglect, without legal hindrance, to conform to the
present regulations, that is, if those who have no title-doeds do
not hasten to procure them, and if those who have title-de< ds
emanating from any other authority than the manager of the
vakf do not exchange their title-deeds against new ones, and that
within the delay of a year, will be condemned to pay double fees, and
the holders of lands of which the value pro-rata should be collected,
xviil see their lands sold by auction. For this purpose the present
notification has been promulgated in order that every one should
conform within a brief period to the Regulations therein contained.
Notes to 9.
1. Compare Art. 4, and especially 2 and note 20 of the Land
Law. Compare also notes 1-2 ot the Tapu Law.
2. Compare Art. 4, 2 of the Law mentioned in the preceding
note. See also Conclusion of the same Law.
3. See No. 1.
4. Ijaretein, perpetual renting. Compare Art. 4 of No. 19.
Rio-ht to 5. The right to Tapu is devoted only to lands Mevkufe,
Tapu. depending on the domain of the State that is rural property. As
regards urban property held by ijaretein (see ndte 4), such a right
to Tapu is not established (see Art. 10 of No. 8). It has already
been said that the right of preference to Tapu of collateral relations
and the wife of the deceased has been abolished, as a consequence of
the right of inheriting, which has been established in their favour
(See notes 106 and 130, 3, of the Land Law).
6. See No. 8.
Notes. 363
Notes to 10. 9
1. As regards the laws relative to the right of inheritance at Right of
:mon law, that is the legislation relative to the inventories of inherit-
inheritances in grncr.il and of Christian inventories in particular. at
see Leg. Ott. Vol. I. No. 10, page 27, and the Vezirial Order, Leg.
Ott. Vol. 1. No. 11, page 41.
2. Archives of the Sublime Porte. By this law the provisions of Rules of
the Land Law relative to the order of succession of Mine and Mrvkufe lnhent '
Lands have been essentially modified. Thys Art. 55 and 1-7 amen ded
of Art. 59 of the said Law have been abolished; consequently
the provisions relative to the right of preference to Tapu of the
collateral relations and of the wife or the surviving husband esta-
blished by the Law have no longer any application, because the
law in question has declared them to be legitimate heirs. Compare
notes 96, ItO, 106 of the said Law.
3. That is Art. 54 of the Land Law.
4. The law of succession of the surviving husband, or of the Husband
surviving wife has been recently completed by the following supple- an< i w ife-
mentarj article.
When a divorced husband or wife contracts a new marriage
before the expiration of the legal delay, and he or she dies before
there has been any conjugal intercourse, the survivor of the divorced
inherits the property of the deceased. In the same way when a
husband seriously ill divorces his wife and he dies before the ex-
piration of the legal delay relative to divorce, the divorced wife
inherits, according to the Sheri, the deceased husband.
5. (1) Firagh bil Vefa^; as regards this institution compare Mortgage.
Arts. 116-118 of the Land Law, Arts. 25-30 of the Tapu Law,
and as regards the new laws^ which have completed or modified the
provisions of the Land Law, note 176 of the said Law. (2) Com-
pulsory sale. Compare Art. 115 of the said Law, which has been
notified by the laws mentioned in note 175 of the Land Law.
6. Compare Art. 121 of the Land Law and Art. 15 of the Tapu
Law.
7. Compare Arts. 25,26, 29, 44, 59, 7, 66, 81, 83, 90 of the Land
Law, relative to trees and buildings, as also their respective notes.
364 The Ottoman Land
8. But up to now, no new edition of the Laws in question has
c *been published.
Notes to 11.
1. This temporary law has ceased to be in force on account of
the expiration of the time on one part, and on the other in con-
sequence of an Imperial Order which the Government has com-
municated through the newspapers.
2. Compare Art. 4 and note 6 of No. 10.
Notes to 12.
1. Under this denomination is understood the lands vakf on
which buildings of all sorts are erected (official note).
2. Musteghillat, urban immovables which have no buildings
but which bring in profit or a rent (note official).
3. The Ijaretein, which literally signifies two rents, constitutes
the essential character of the vakf property. The first rent,
called Ijarei Muajele, anticipated rent, is paid at the moment of
taking possession ; and the second, Ijarei Muejele, or rent when
due, constitutes the rent which the holder of the vakf property
must pay every year (official note).
4. See note 4 of No. 10.
5. See No. 14.
6. See No. 14.
7. See Art. 3, note 5 of No. 10. <
Mukata. 8. Mukata signifies forfeit rent ; under this form the owner of
a vakf frees himself of all obligation towards the administration
of the Evkaf beyond the annual payment, and the buildings which
are on the vakf lands are considered as Mulk (official note).
Note to 14.
But this law (No. 12) bears the date of the 7. Sepher, 1284.
Notes. 3 6 5
Notes to 15.
1. See Note 5 of No. 10.
e page 81.
3. Right to Tapu see notes 24 of 4, and 18 of 2.
4. See note of 14.
5. However see note 31 of 2.
Note to 16.
With reference to the hypothecal re'gime, Feragh bifrvefa, com- Mortgage
pare note 176 of Land Law, as also the Arts, and laws there
mentioned ; see also notes 26 and 28 of the Tapu Law. With
respect to what has been said in note 28, it is to be observed
that the tribunals civil-religious (sheri) are competent to legalize
judicially the title-deeds issued by the competent authorities (see
note 5 of No. 19).
Notes to 18.
1. These instructions, which bear no date, have been issued,
according to what is said in Art. 2, after the new administra-
tive system that is, after the promulgation of the law of the
vilayets, which took place in 1867. They are then the newest
Instructions, having in view to regulate certain things according to
the present administrative regime, and to determine the duties of
the new functionaries of the Tapus, which provisionally, until the
termination of the Cadastre, are charged with all that is relative to
title-deeds of possession of the domanial lands, whilst, as is known,
the functionaries of the 'finance and the Kaimacams are the
ordinary officials of the JTapus. Compare note 130 of the Land
Law, and note 3 of the Tapu Law.
*2. See No. 1.
3. See No. 2.
4. See No. 4.
5. As regards No. 3, compare note 9.
366 The Ottoman Land Code.
6. Alienation and transmission. Compare notes 3-4, and 12
Oof No. 4.
7. Lands escheated to the state (put up to auction). See
note 25 of No. 4, and No. 20.
8. Clandestine possession (See note 26 of No. 4).
9. That is Nos. 1, 2, 3, 4, and 18.
10. Exchange and delivery of title-deeds. Compare notes 7-8
of No. 4 ; see also Art. 3 of the Land Law.
11. Lands granted t> colonists. Compare the law on coloniz-
ation in Turkey by foreign families ; and especially Arts. 4, 8,
and 9.
12. Compare Arts. 104-105 of the Land Law.
13. Compare note 130 of the Land Law, and note 3 of the
Tapu Law.
14. See the preceding note. As regards the sale by auction
compare No. 20.
15. Eight to Tapu. Compare note 24 of No. 4.
16. Compare in regard to this what has been said in note 20 *of
the Land Law.
17. Compare Art. Ill of the Ottoman Penal Code.
Notes to 19.
1. As is seen, the renting with double payment corresponds to
locatio perpetna agrorum civitatis of the Boman legislation (see note
25 of the Land Law).
2. See No. 12.
3. Cum finitus fuerit usus fructus, revertitur^ ad proprietatem et
ex eo tern pore nudgs proprietatis dominu^ incipit plenam habere in
re potestatem (Inst. 4, 2, 4).
4. See Regulations cited in note 21 in fine of the Tapu Law, and
also No. 23.
5. As regards the other formalities relative to the judicial legisla-
tion of the title-deeds in question, even tlfose of domanial lands by
Notes. 367
the tribunals civil-religious, compare the Regulations as to their
jurisdiction inserted in the section "Ledroit judicial re" of the
puhlic," especially under the title "Jurisdiction exceptionnelle.
. 1.1 and 16, as also note 26 of the Tapu Law.
7. That is, the tribunal civil-religious of control or inquiry.
>
Note to 20.
1. Note 130, 1 of the Land Law, as also Art. 18 of the Tapu
Law, were already printed when we learnt the publication of the
Order in question. It is for this that we have not mentioned it.
Note to 22.
1. By this law the provisions of Art. 115 of the Land Law Sale of
which established the inalienability of the domanial land without ' an( ^ s f
the consent of the owner have been abolished. Compare in this
respect what has been said in note 175 of the same Law, see also
i^os. 7 and 15. As regards compulsory sale : (1) of the immovables
belonging to a foreign bankrupt by the syndics of his bankruptcy ;
or, (2) of the immovables of* a foreign debtor by another foreign
creditor who has obtained a judgment before foreign Courts, com-
pare Art. 3 of No, 13.
Notes to 23.
1. See the note 4 of No. 19.
2. Compare the Art. 6 of No. 19.
3. Possessio alternativa ^
( 369 )
INDEX.
ACTION,
for fraud as between alienor and alienee cannot be continued by
heirs, 64
limitation of,
as to Tapn, 11, 12, 288
mortgage &c., not by deed cannot afford grounds of, 85, 135,
237
right of, of alien, 169
time for bringing action as to alienation got by force, 61
Yergi must be paid before, can be brought or search made in
certain cases, 278
ALIEN,
bankruptcy of, procedure upon, 170
disabilities of, 59, 339
extension of law in favour of, 168
issue of title-deeds to, 261
legal position of, as to property, 169
operation of law as to, 171
registration of property of, 118
succession to property of, 170
testamentary powe^of, 170
ALIENATION;
application of law with regard to, in favour of foreigners, 169
by owner to one of another village, 23
effect upon, of force, fraud, &c., 61, 341
fees or duties payable upon, 74, 96, 236, 252
form of certificate used for, 101
illegal conditions make, void, 61, 62, 342
2 B
37 Index.
ALIENATION continued.
of lands after two years' abandoment, 38
of lands held to religious uses, illegal, 65, 345
provisions as to, of Arazi Mirie', 20-27, 292-304
unauthorized by partner or stranger, 23>. 297
validity of, by owner in articulo mortis, 64, 65, 344
AKAZI KHARAJIE,
definition of, 2
division of, into two classes, 2
may acquire the character of Arazi Mirie, 2, 282
when it belongs to the Beit ul Mai, 2, 281
AKAZI MEMLUKE,
classification of, 1, 2
definition of, 1, 279
trees growing upon, cannot be held by Tapu, 57, 333
AKAZI METRUKE,
classification of, 1, 6, 283
cutting of timber in forests, &c., 48
definition of, 1, 6, 280
enclosure, provisions against, 49, 321
provisions as to, 48-53, 321-330
trees growing upon, cannot be held by Tapu, 57, 333
ARAZI MEVAT,
classification of, 6, 283
cutting of wood upon unoccupied, 55, 332
definition of, 6, 283
law as to appropriation of, 76
notice as to woods upon, 185, 186
provisions as to, 54-56, 330-333
trees growing on, cannot be held by Tapu, 57, 333
use by public of unassigned grass-lands, 55, 333
ARAZI MEVKUFE. See IJARETEIN, MUSAKAFAT, MUSTEGHILLAI ,
VAKF.
acquisition of title to, by length of possession, 41, 42, 314
certificates as to, 147-157
characters of 4, 5, 282, 283
Ind 371
ARAZI MEVKTJFfi omtfnwd.
classification of, 4, r>.
conditional sale to creditor valid, 02, 342
definition of, 4, 5, 282, 283
devolution of, bysjnheritai.ee, 28-30, 305-308
emlak upon, provisions as to, 22'.
fees or duties payable upon alienation or inheritance of (see
ALIENATION, FEES, INHERITANCE), 252
legal procedure as to, assimilated to that as to A. Mirk',
147
monthly register of " events : ' as to, 264:
mortgage of, illegal, 62, 34:2
mode of carrying out, 177, 178, 365
no rent taken from occupier of Mahlul who has cultivated, 42
reward for information as to concealed, 79
ight to Tapu incident only to Mevkufe of a rural character,
362, n. 5
. separation of affairs of, from those of A. Mirie, 255
tax upon, increased (obsolete law), 161-163, 364
trees growing upon, cannot be held by Tapu, 57, 333
ARAZI MIR IE. See TAPU, and passim.
acquisition of title to, by lapse of time, 41, 42, 314
alienation of, 20-27, 292-304
Arazi Kharajie and Arazi Ushrie may acquire the character
of, 2
buildings upon, 16, 291
classification of, 3, 282
conditional sale to creditor valid, 62, 342
conveyance of, 71, st seq.
definition of, 1, 279, 281
devolution of, upon <ftath, 20, 28-30, 305-308
emlak upon, provisions as to, 229, et seq.
escheat of, 31-47, 308-320
- extension of law as to, to " Khassa " and other lands, 67, 3 18
liability of, to saleTor payment of owner's debts, 218
MaLlalat (Escheat) of, 31-17, 308-320
Mai Mvmours, authority of, as to A. Mirie, 71, 351
mode of possession'of, 8-19, 284-292
2 B 2
372 Index:.
AEAZI MIRIlil continued.
mortgage of, illegal (obsolete clause), 62, 342
mortgage, provisions as to, 81-85, 177, 178, 355, 356
new buildings upon, 16, 291
non-Mussulman subject may purchase, 259
no rent to be taken from occupier of Mahlul who cultivates, 42
ownership of buildings, sites, vineyards, &c., of deceased owner,
43, 44, 315
permission of official necessary upon alienation of, 20, 21, 293
reward for information as to concealed, 79
sale of, provisions as 'to, 20-27, 292-304
separation of affairs of, from those of A. Mevkufe, 255
tax upon, increased (obsolete provision), 162, 364
timber upon, 15
title to, must be evidenced by deed, 89
rineyards and orchards upon, 13, 14
AEAZI USHRIE,
definition of, 2
may acquire character of Arazi Mirie, 2
when it belongs to the Beit ul Mai, 2
AUCTION,
Evkaf Treasury to carry out sale by, of certain lands, 262
liability of highest bidder at, 221
of lands taken in execution, 220, 221
protection of highest bidder at, 45
puffing at, prohibited, 221
sale by, of Mahlul houses, 224
sale by, of Mahlul land, 78, 143, 212, 366
secretaries to be present at, of Mahlul,' 214
time for claim of ownership of land put up at, 221
BROTHER. See INHERITANCE.
BUILDINGS,
application of Land Law to, on Mirid and Mevkuie lands, 160,
363
certificates issuable as to, 275
increase of ijare upon erection of, 175
Index. 373
BUILDINGS continued.
management and preservation of number-plates on, 133
ownership of, erected by deceased tenant, 43, 315, 316
. preferential right of owner of site of, 23, 36
prohibition of new, save under certain^ conditions, 16, 291
. public, registration of, 118
reduction of ijare when, are destroyed, 175
regulation of, 123
sale of Mulk (freehold), 25
sites of, ownership of, 43
valuation of sites of destroyed, 246 ,
valuation of new or restored, 246
CENSUS,
division of sexes to be observed in making, 117
permit, effect of, 117
registration of, 111 et seq,
transmission of census-books, 124:
CEKTIFICATE,
arrangement of, in register, 100
as to ownership of land of deceased, 73
composition of register by certificates, 100
counterfoils of, where to be kept, 98
delivery of, to alienee at time of sale, 96
different forms of, when to be used, 101
duplicate of, how made and sealed, 106
duty of vendor to get, before conveyance, 71, 72
foot of, how filled up, 106, 154, 155
for Musakafat and Musteghillat Mevkufe, 147-157
forms of, 101-6, ^8-55, 271-8
how to be filled up, 103-7, 148-57
Imam must issue, as to alienation, &c, 269
issue of certificate, 145, 269
making up, time for, 98
* pure Mahlul, ho w certificate as to, is to be filled up, 105
separation of certificates, 156
set form cut out of Kochan Books to be used, 88
specimens of, 271-8
tabulated, regulations as to, 138
3 74 Index.
CERTIFICATE continued.
< temporary, forms of, adopted, 99
transmission of, 107, 156
triplicate, certificate must be in, 107
Vakf lands, form and contents of certificate as to, 208
CHIFTLIK,
application of Mirie land procedure to, held by Mulkname
Humayun, 160
definition of term, 68, 69
non-Mussulman subject may hold arable lands belonging to,
259
pasturage of, not to be trespassed upon (A. Metruke), 51, 329
preferential rights of Mussulman and non-Mussulman subjects -
in certain Chiftliks, 259
provisions as to, of orphan, 86, 87
when, may be created, 68, 349
CHILD,
absent, right of, as to inheritance of lands, 29, 306-7
descent, rules of, when there is no, 31-47, 308-320
right of, to inherit land of parent, 28-30, 305-8
CONCEALED LANDS,
disposal of, on death of owner without heirs, 90
reward to informer as to, 79, 241, 242
CONVEYANCE
of Arazi Mirie
binding effect of first conveyance, 21, 296
for valuable consideration, 21, 295,,
form of certificate used for, 101
formalities of, 71, et seq. <
mode of, 71, 72, et seq. '
permission of official needful to a valid, 21, 294
purchaser or agent must be present to execute, 20, 29.' > -
taxes to be paid before transfer of lands, 131, 132
without consideration, 21, 295
without consideration, estimated value to be stated in
case of conveyance, 105
Index. 375
CREDITOR,
duty of, to give notice to creditor, 219 ?
holding land as security may sell, 63, 342
rights of, against heir of debtor, 64, 343
rights of assignee of creditor's claim, ^19
rights of one, when another does not desire sale of debtor's
'lands, 222
DEBT,
creditor holding land as security may sell it, 63, 343
exemption of Mahlul lands from ^ability to sale for payment
of, 216
land cannot be seized for (obsolete provision), 62, 342
sale of Musakafat and Musteghillat lor payment of, 216, 217
saving as to old debts, 222
DEBTOR,
execution of judgment against lands of, 220
notice to, by creditor, 219
option of, as to things to be sold, 222
saving for, 219
time granted to, for paying debt, 219, 220
DESCENT. See INHERITANCE.
DISABILITIES,
of person abandoning Ottoman nationality, 59, 339
of Tapu official and his kinsmen, 46
racial, 59, 338
religious, 59, 338
removal of, as te tenure of arable Yakf and Mirie, 259
DUTIES. See FEES,
EMLAK,
actions as to, 237
administration of Emlak affairs, officers for, 230
affairs relating to Emlak in Constantinople, how regulated,
260
auction sale of, 236
f
376 Index.
EMLAK continued.
, certificates for alienation, inheritance, &c., to be brought to
Emlak office, 269
clerk, duties of, 231
effect of title-deeds as/ to, 237
fees for Yoklama of, 233
fees payable upon mortgage of, 236
sale of, 235 '
succession to, 235
inheritance of, of alien, 170
inspection, (Yoklama), tow to be carried out, 231, 238
issue of new title-deeds for, 231
mortgage of, mode of effecting, 236
office for business regarding, 230
preparation of certificates by Emlak office, 271
procedure as to, of alien, 169 n.
registration of, 231, 234, 238
sale of, provisions as to, 234-6
separate Yoklama registers for simple, and Mukata, 233
Sheri Elam essential for, 237
specimens of certificates which must be sent to Emlak office,
270-7
temporary certificates as to, delivery of, 232, 233
title-deeds for, provisions as to, 229, 230, 233
Yoklama of, how to be carried out, 231, 232, 250, 252
Yoklama register, making of, 232, 233, 250
ESCHEAT (MAHLULAT). See DESCENT.
of Arazi Mine upon failure of issue of owner, 31-47, 308-321
EVENTS. See OCCURRENCES.
EVKAF TITLE-DEEDS ADMINISTRATION, ,
constitution of, 201
duty of clerks to keep registers, 202
registers of, classification of, 202
separate register for Mazbuta and Non- Mazbuta Yakfs to be
kept by, 202
staff of, 201
Index. 377
EXCHANGE,
a payable upon, 74 >
of old title-deed for new one, certificate for, 101
EXECUTION,
against lands of debtor, 220
auction, sale of lands taken in, 220, 221
FEES. See INHERITANCE, SALE, SUCCESSION.
amount of, payable for title-deed, 74, 92, 93 .
, payable upon exchange, 74,
, payable upon mortga<$, 74, 173, 174, 181, 205,
235
, payable upon sale, 74
, payable upon succession, 75, 205, 246
as to Musakaiat and Musteghillat Mekuie, 139, 173, 174, 245
double fees levied by way of penalty in certain cases, 140, 143
Emlak, fees payable upon sale or mortgage of or succession to,
233, 235, 236, 237
payable upon conveyance, 72, 74, 96
payable upon succession, 73, 96, 205, 245
remission of, 205
FORESTS,
conversion of, into arable land, 11, 289
cutting of timber in Baltalyk (Arazi JUetruke), 48
enclosure of, provisions against (A. Metruke), 49, 321
tenure of, by Tapu, 16, 292
tithe upon, 16
FRAUD,
duties of Mai Momours to hear actions as to (A. Mirie), 80
effect of, upon alienation got by, 61, 341
FREEHOLD.. See MULK.
FRUIT-TREES,' "
provisions as to, 13, 14, 15, 291
GARDEX,
land not to be converted into, 13, 14, 289
law for protectjpn of, 66, 348
sale of, of infant, lunatic, &c., 27, 305
i
378 Index.
GEDIK,
* amount of rent payable for, held in Ijaretein, 246
certificate's to alienation, 270
certificate issuable as to, specimens of, 276
equivalent to Musafeifat, 199
mode of estimating yearly rent of Mulk taken from, 173
office, constitution of, 201
r
GUARDIAN,
duties of, as to property of infant, lunatic, &c., 26, 27, 40, 303
management of lands o.Jf infant, lunatic, &c., by, 40, 313
right of, to Tapu in certain events, 36, 311
HEIR,
absent, disposal of lands of, 39, 40
absent, right of as to inheritance of lands, 29, 337
action for fraud cannot be continued against, 64, 343
descent to, rules as to, 28-30, 306-9
devolution of lands of absent, 40, 313
devolution of lands upon, 28-30, 305-9
disposal of lands when no, 140
duty of, as to process of inheritance to Musakafat and
Musteghillat, 174
obligation to pay Tapu value in certain cases, 38
one house, fit for habitation, to be reserved for heir of debtor,
217
preference of, of the first degree, 244
right of, of partner deceased, 239
rights of creditor against, of debtor, 64, 343
HIGHWAYS,
preservation of, 49, 324
HOUSES,
purchase of share in house by co-owner, 24
sale by auction of Mahlul, 224
sale of shares in joint dwelling, 225, 226
HUSBAND,
descent to, 32
divorce by, effect of, 228 *
Index. 379
IirSP.AXl) <;,),f tuned.
purchu-f l>y, i't' Mahlul share of deceased wife, >
share .f, in descended Musakafat and Musteghillat, 2-i-i
succession as between, and wife, 228
r
IJ ARETE IX,
alienation of Musakafat and Musteghillat Vakfie held in, 203
iution of Mazbuta and non-Mazbuta Yakfs, held in, 199
meaning of, 364 (u. 3 to XII.)
mortgage of Musakafat and Musteghillat Vakfie held in, 203
no right to Tapu in lands held in,'142
payment of Muejele to Vakf upon alienation, 199
rules of inheritance of Musakafat and Musteghillat held in,
:-8
sale by auction of certain lands which have to be converted
into,
tenure of one class of Musakafat by, 199
INCOME,
enquiries as to, 117
INFANTS,
lands of,
division of, when partners, 11, 287
letting of lands of, when guardians neglect cultivation, 40
loss of rights by lapse of time, 22
management of lands of, 40, 313
purchase bv, 26, 301
sale by infants of, 25, 301-302
sale o', 2(3, 303
saving of rights as to, 34, 310
INHERITANCE, *
by children, brother, sister, husband, wife, &c., 28-32, 305-8
devolution of A-azi Mirie by, 28-30, 305-8
devolution of Mazbuta and non-Mazbuta Yakfs by, 199
facts as to, to be set forth in certificate as to, 152
lees payable upon inheritance, 74, 75, 96, 166, 173, 205, 235,
245.
form of certificate as to, 101
380 Index.
I NH ERITANCE continued.
fform of certificate as to, how to be filled up, 104, 153
of Arazi Mirie upon death of owner, 28-30, 31-47, 158, 159,
305-321, 363
right of, of heirs of atfen, 170
rules of, 28-30, 31-47, 158, 159, 305-321, 363
rules of, to Musakafat and Musteghillat Vekfs held in Ijaretein,
164, 364
specimen of certificate issuable as to, 272, 273
IRRIGATION,
preservation of ancient rights as to water for, 65, 347
protection of works for, 67
ISSUE,
descent to, 28-30, 305-8
devolution of lands upon failure of, 31-47, 308-321
JOINT OWNER. See PARTNER.
K1SHLAK. See PASTURAGE.
LAND OFFICIALS. See OFFICIAL.
LANDS,
abandoned, disposal of, 38, 39, 77, 313, 354
certificate of severance of, 145
chargeable in hands of heir of debtor, 64, 342
choice of, to be sold by auction, 187
classification of, 1
concealed, provisions as to, 79, 90, 241, 242
devolution of, by inheritance, 20, 28-30, 31-47, 308-322
distribution of, 8
disposal of unoccupied (A. Mevafy, 54, 331-33
disposal of vacant, by State, 33, 90, 140,' 141, 309
division of partners' shares in, 10, 11, 144, 145, 175, 287
estoppel of lessee or borrower as to title to,' 13, 289
failure of heirs, disposal of land upon, 140
inalienability of, held to religious uses, 65, 345
issue of new title-deeds after severance of shares in, 145
provision against conversion of, 13, 14, 289
reclaimed from lake or river, disposal of, 63, 347
Index. 381
LA X 1>S ,/;,) ued.
reclaimed Irom the sea, ownership of, 69 350
rules of inheritance of, 28-32, 305-8
sale by partner of his share in, 95
sale of, for payment of debts, 63, 246-224, 343
sale of, upon death of owner without heirs (A. Mirie), 90
waste lauds, disposal of 141
See also INFANTS, LUNATICS, PARTNERS, POSSESSION.
LUNATE
lands of,
division of, when partners, ll, 287
letting of lands of, when guardians neglect cultivation, 40
loss of rights of partner by lapse of time, 22
management of lands of, 40, 313
no claim by, for deterioration of land unlawfully occupied
by another, 12, 289, 290
purchase by, 302
right of, as to crops sown by stranger, 12, 289
sale of, 25-7, 301-5
saving of rights of, 34, 110
MAHLUL (UNCLAIMED LAND),
auction-sale of, 143, 212
auction of Arazi Mahlul to which there is a right to Tapu
illegal, 92, 142
certificate as to, how filled up, 105
disposal of land which has become, 34, 78, 308, 309, 354
facts as to, must be stated in certificate, 153
grant of Mahlul land, 142
houses, sale of ^lahlul, 224-7
notice of property becoming, 270
procedure when land has become, 64
protection of highest bidder for, 45
reward for information as to concealed, 79
MARRIED WOMAN. See WIFE.
MAZBATA,
facts to be stated in, 78
382 Index.
MAZBATA continued.
r issue of 75, 78
provisions as to, 89, 100
transmission of, upon conveyance of lands, 72, 73, 75, 80, 100,
107, 109
use of printed, 89
Vakfs, provisions as to, 172, 198-200
MEADOWS (Chayir),
disposal of vacant, 44, 318
held by Tapu, 9, 285
extension of inheritance'of Musakafat anrl Musteghillat found
in, 172
METALS,
ownership in, 57, 58, 333-5,
MINERALS,
ownership in, 57, 58, 333-5
MINOE. See INFANT.
MISTAKE,
no remedy for, as to area of land sold, unless superficial area is
expressly stated, 24, 298-300
MORTGAGE (VEFAEN FERAGH),
debt, payable in the first instance out of debtor's movables, 178
duties or fees payable upon (Istiglal), of Musakafat and
Musteghillat, 173, 205
fees payable upon, 74, 181
Feragh bil Vefa, provision as to, 159, 166, 208, 244, 365
formalities for creation of, 81, 177, 178, 10
inalienability of land subject to, 82
Istiglal of Musakafat and Musteghillat, ITS
legal position of mortgagee of Arazi Mirie, 81 '
mode of carrying out, of A. Mirie and Mevkufe, 177, 178
must be by deed, 85
of Mazbuta and uon-Mazbuta Vakfs, 203
of Musakafat and Musteghillat Yakfie, 203, 244
power of sale as to, 82
provisions as to, 81-5, 216, 356-7
Ind 383
MORTGAGE
ration of, onnpiilsnr
- to, of Musakafat and Musteghillat, 21G
imen of certificate issuable upon Creation of a, 271
Terliin, law as to the, of lands, 180, 1M
Vakfs, provisions as to mortgage of, 207, 208
MORTGAGEE,
cannot assign, 82,
cannot come upon other lands of mortgagor, 84, 178, 356
MORTGAGOR,
duty of, of Musakafat and Musteghillat Vakfie, 204
procedure, when mortgagor dies without having redeemed, 83,
356
sale of land of, who has died leaving no heirs (obsolete clause)
83, 356-7
MULK (FREEHOLD)
alienation of land upon which exist Mulk buildings or vine-
yards, 25
application of procedure to Mukata Vakf sites and Mulk
buildings, 167
levy of Mulk Hujet upon Mulk buildings, &c., when land is
Vakf, 143
ownersldp of Mulk buildings, &c. erected by deceased owner,
43, 44, 315-7
rent when Musakafat or Musteghillat is mixed with pure, 245
title-deed for pure, 263
MURDERER,
forfeiture by, 59, 540, 336
MUSAKAFAT MEVKUFE (VAKF SITES OF BUILDINGS),
certificate as to, 139
devolution of Mazbuta and non-Mazbuta Vakfs upon death,
199
disposal of land upon failure of heirs, 140
duties or fees payable with respect to, 139, 140, 173, 245
384 Index.
MUSAKAFAT MEVKUF^ continued.
v extension of inheritance of, in certain Vakfs, 172
fiscal provisions as to, 172
increase of tax upon, 166, 246, 364
leased by Muajele, Pelivery to Treasury of price or value of,
139
meaning of term, 198
mortgage of, how created, 178, 365
mortgages of, duties payable upon, 173
new title-deeds to be issued for, 140, 247, 249, 261
no right to Tapu in, 1<* 2
office, constitution of, 201
owner of, must have title-deed from Vakf, 138, 249
permissive character of law of inheritance of, 166, 167, 257
records of, 263
reservation to debtor of one house and certain land, 218
rules of inheritance of, held in Ijaretein, 243-8
sale of, for payment of debts, 216, 218
separate register (Mufredat Defter) to be kept for, 139
tenure of one class of, in Ijaretein, 199
valuation of, to be quinquennial, 247
MUSTEGrHILLAT MEVKUFE (URBAN PROPERTY, NOT BEING
BUILDING SITES),
certificate as to, how to be filled up, 138, 139
devolution of Mazbuta and non-Mazbuta Vakfs upon death,
199
disposal of land upon failure of heirs, 140
duties or fees payable with respect to, 139, 140, 173, 245
extension of inheritance of, in certain Va,kfs, 172
fiscal provisions as to, 172
increase of tax upon, 166, 245, 364 ,
meaning of term, 199
mortgage of, how created, 178, 365
mortgage of, duties payable upon, 173
new title-deeds to be issued for, 140, 247, 249, 261
owner of, must have title-deed from Vakf, 138, 249
permissive character of law as to inheritance, 166, 167, 257
records of, 263 .
Index. 385
M I ' STEGHILLAT MEVKUF&- oo </w erf.
reservation to debtor of one house and certain land, 218
rules of inheritance of, held in Ijaretein, 243--
sale of, for payment of debts, 216, 218
valuation of, to be quinquennial, 247'
OCCUPIER,
acquisition of title by length of possession, 41, 42
conflicting claims between real owner and actual, how to be
adjusted, 18, 19, 241-2
disposal of land in case of illegal possession, 41
ownership of crops, buildings, vineyards, &c., of deceased,
42-44
protection of, who holds without title, 4>2
OCCURRENCES,
census occurrences, schedule of, 127
record of, 128
record of changes in state of proper c. -,127
OFFICIAL,
assignment of, to Kaza, 183
assignment of, to Sanjak, 183
disabilities of land, and of his kinsmen as to Mahlul, 46, 320
duties of Defter Khakani, 263
employment of additional, 255
punishment of, who breaks regulations, 134
remuneration of additional, 256
salary of land, 193, 197
ORPHAN,
Chiftlik of, law as to, 86, 87
management of property of, 86, 87
sale of, for orphan's benefit, 87
transmission of Mazbata as to property of, 87
OUTLYING LANDS,
disposal of, 91
issue of title-deeds for, 76
occupation of, unlawful without licence from. State, 91
2
386 Index.
OUTLYING LANDS -continued.
' " provisions as to tithe upon Boz, Kiraj and Tashlik, 76
Tapu value to be paid in certain Cases, 91, 92
OWNER,
absent, right of children of, 29, 308
alienation by, in articulo mortis, 64, 65, 344
conflicting claims between real', and occupier, how adjusted, 18
erectioii of- new buildings, &c., by joint, without consent of
other or others, 18, 19, 291
forfeiture by, upon failure to cultivate properly, 37, 311
preferential right of, as to things placed by another, 23
owner of trees and buildings as to their
site, 36, 311
protection of, against trespass, 9, 10, 18
restriction upon,
as to new buildings, 16
as to cutting up land for brick-clay, 9
PARENTS,
descent of land to, 28, 306
duties of, as to property of infants, 26, 303
right of absent, 29, 308
PARTICULARS. See OCCURRENCES.
ARTNER,
alienation by, 22
devolution of lards upon, when partner's issue, &c., fails, 32,
33,308
division of land held in partnership, 145, 175
erection of new buildings, &c., by, winout consent of co-
partner, 18, 19, 291
new title-deed for severed part of land, 175
no pre-emption in partner upon sale of share by, 22
right of heir of deceased, as to land alienated by partner, 22,
239
sale by, of his share in land, 95, 358
sale of partner's share in land, 144
Index. 387
PAKTXKIJ cnntlnncd.
severance of shares <>f, in lands, 10, 1-1;"), 286
condition precedent to, 10, _^7
finality of, 10, 286
permission of official necessary for, 10 .
presence of owners or their agents necessary^ J*0, 11, 287
when partner is an in&nt or lunatic, 11, 287 !
unauthorised alienation by, 23, 296
PASTURAGE,
application of law to, 13, 289
disposal of vacant, 44
exclusive use of assigned (A. Metruke) 53
limits of, to be preserved (A. Metruke), 51, 329
of Chiftliks not to be trespassed upon (A. Metruke), 51, 329
preservation of common (A. Metruke), 50, 328
tax upon, by whom payable, 67, 348
POSSESSION,
acquisition of title by length of, 41, i2. 314-315
disposal by State of lands in case of illegal, 41, 313-314
mode of, of Arazi Mirie, 8-19, 284-292
of A. Mevkufe without deeds, unlawful, 250, 251
unlawful (i.e., without title), 251
no claim for mesne profits diiring, 12, 289, 290
PROPERTIES,
inquiries as to, 117
particulars of, 118
punishment for concealment of, 116
registration of, 1>1, 112, 116, 117 ^
true value of, must be stated, 118
PURCHASED
delivery of title-dfeed to, 97, 222
must obtain permission of official, 20, 21, 294:
non-Mussulman subject may be, of arable Yakf and Mirie
lands, 259
protection of, 21, 296
RACIAL DISABILITIES. See DISABILITIES.
2 c 2
388 Index.
HATING,
committee for, 114
scale for (ba&), 122
RECLAIMED LAND, c
disposal of, 65,. 347
owner&hip*t>f land relaimed from sea, 69, 350
REGISTER,
contents of, 100
keeping of, 100
receipts, nature of, inserted in register, 253
separate, for each Kaza, 80
REGISTRATION,
districts for, 113
of census, 111, et seq.
of conveyances of land, 72
officers (census and properties), duties of, 113, 125, 129
of properties, 111, et seq.
of title-deeds, 195
RELIGIOUS DISABILITIES. See DISABILITIES.
EENT,
increase of, upon registered Musakafat and Musteghillat, 245
mode of estimating yearly rent of Mulk taken from owner of
Gedik, 173
of enclosures, mills, otlaks, &c., by whom payable, 67, 348
regulation of Musakafat and Musteghillat for which there is a
fixed, 247
separate, for each Vakf, 245
c
SALE,
before receipt of new title-deeds, 145, 146
binding effect of, 21, 295-296
by auction of Mahlul land, 78, 143, 212, 354, 366
by auction of Mahlul to which there is a right to Tapu
illegal, 92
by infants, lunatics, &c., 25, 301
Index. 389
SALE tiontfi
by partner, of share, 22, 95 9
certain lands to be sold by Muhasebejis of Evkaf, 266
debts, sale of lands for payment of, 63, 216^23, :i
fees payable ujx>n, 74, 96, 235,
formalities of, 71, 74, 353
leave of official necessary for, or exchange .f Jands, 20, 21,
293-294 *
Mazbuta and non-Mazbuta Vakfs, 203
mode of, by guardian, 26, 303
Musakafat and Musteghiliat Vakfie', law as to sale of, 203-206,
216
no remedy for mistake as to area, 24, 298
non-MusuIman subject may purchase arable Vakf and Mirie,
259
of Chiftlik belonging to orphan, 86, 87
of lands escheated to State, 41, 313-314
of trees, freehold and other, 25, 300
partner's share in lands, sale of, 22, 95, 144, 145
pre-emption of adjacent owner not applicable to Arazi Mine,
24
preferential right of owner as to things placed by another, 23
protection of highest bidder at, 45
provisions as to, of Arazi Mirie, 20-27, 293-305
purchaser or agent must be present at, 20
sale of Mahlul houses by auction, 224-227
saving as to certain property of debtor (repealed clause), 136
specimen of certificate issuable upon, 272
subject to rights of infant, lunatic, &c., 35, 310
unauthorised, 23, 296
without consideration, 21, 295
SEVERANCE,
certificate as to, of shares in lands, 145
issue of new title-deeds after, 145
of shares of partners in lands, 10, 11, 96, 144^ 145, 288
SHEIK-UL-ISLAM.
authority of, 70, 350
390 Index.
SISTER. See INHERITANCE.
disposal of, being Arazi Mirie, upon failure of trustee to
repair, 46} 321
ownership of, of former buildings, vineyards, &c., 43, 44
valuation of, of destroyed buildings, 246
-- , o,f new or restored' buildings, 246
SLAVE,
legal position and rights o as to land, 60, 340
fi
SOLDIER, '
gift of part of land to, 36, 182, 311
preservation of rights of, as to lands, 39, 312
privilege of, as to descent to his heirs, 29, 308
- : - , as to disposal of vacant lands, 33
SUCCESSION,
fees payable upon, 74, 75, 96, 166, 173, 205, 235, 245, 252
formalities and fees upon, 73
to Musakafat and Musteghillat, duties payable upon, 173, 205
TAPU,
accomplice of murderer cannot have right of, 240
assertion of right of, period for, 34, 309
burial of corpses upon land held by, unlawful, 17
definition of term, 3
disposal of lands upon forfeiture of right of, 35
disposal of lands when holder of right to, conceals his posses-
sionj 41
extension of system of, to " khassa" and other lands, 67, 348
extent of right of, 79 *
forfeiture of right to, 34, 35, 309
land becomes subject to right of, if owner fail to cultivate
properly or to re-occupy after flood-waters have retired, 37/
38, 311
lands of infants, lunatics, &c., do not become subject to, 40
meaning of term, 3
paramount rights of person having right to; 45, 318
t
Ind&x. 391
TAPU continued.
period for assertion of right of, 34, 309
sale of land held 1 293-305
sale of land held by, subject to rights of infant, &c., 35, 310
staff to be employed at Tapu office,
successive degrees of persons entitled to, 35, 315
Tapu-value, what is, 142
value, definition of, 142
when abandoned lands do not become subject to, 38
TAPU SEXED. See TITLE-DEEDS.
TAPU CLERK,
assignment of, to Kaza, 183
duties of, as to certificates, 188, 189
duties of, as to deeds, 89
duties of, as to making visits to villages, 187
duties of, as to Yoklama register, 250
fees of, 255
report by, to Tapu official at capital of Liva, 189
salary of, 193, 107
selection of, 89
status of, 196
TASAREUF. See POSSESSION.
TAXES,
application of, by commission, 124
application of excess, 122
apportionment of, 120
building tax, 126
commission for regulation of, 120
duties of commission for regnlation of, 121
increase 'of, upqn registered values of Musakafat and Muste-
ghillat, 245
management of, 120
payment of, by alien, 169
payment of, on property in Yoklama summary, 254
provision against unlawful increase of, 125
record of amendment of, 129
f
392 Index.
TAXES continued.
r remission of, certificate of, granted to poor, &c., 124
remission of, .upon destroyed property, 123
transfer of lands impossible unless taxes paid, 131
upon enclosures, millr, &c., by whom payable, 67, 348
village divisional officers to apportion trade-tax, 126
TIMBER,
ownership of, 15
TITHE,.
increase of, 161
upon crops generally, 66, 67, 348
upon produce of orchard, 14
trees, 14
vineyard, 14
TITLE,
acquisition of, by length of possession, 41, 42, 45, 314-315,
319
duty payable upon deed of, acquired by length of possession,
93
no title acquired by lapse of time in respect of pullic lands (A.
Metruke), 53, 330
PRESCRIPTIVE,
fee payable upon deed relating to, 93
issue of new deed as to, 143
proof of, 251
TITLE-DEED,
adoption of uniform system as to A. MiriS, 88
classification of title-deeds, 184, 185
comparison of, with register, 208
contents of, 119
contents of printed Tapu-Sened, 76, 354
cost of, 93
delivery of, to purchaser, 97, 146
disposal of old, 94, 95, 103, 146
examination of, by census officials, 119
fees pay able ^or new, 74, 75, 92, 93, 353
Index. 393
TITLE-DEED-
fur lands in Constantinople, '_
'<l>i*teijhiU<- , 143, 144
for simple Emlak, 229,230
;e of new, 143, 144, 249, 250, 2M, 261
of new, upon loss of old, 94, 95, 103, 144, 209.
of new, upon loss of old, form of certificate used upon, 101
marginal notes upon, prohibited, 1
mortgage deeds, preparation of, 208
new, for severed parts of land of partners or -joint owners, 175
of certain lauds in Constantinople, 2
of land sold for payment of debts, 2
of waste lands (Buz, Kiraf), 76
old deeds to be given up on issue of new, 94
possession of A. MevA-nfe without, unlawful, 250, 251
preparation of, of Muzbata and non-Mazbata Vakfs, 207
production of, by owner to Emlak office, 271
registration of, 195
renewal of lost, 94, 95, 103, 144, 209
sealing of, 195, 265
separate, for each Yakf of Mitsakafat and Husteghillat, 209
time for exchange of old for now, 94
transmission of, to Kaza, Liva, Vilayet, &c., 195, 265
Yakf lauds, issue of new title-deeds as to, 143, 249, 360
writing upon margin of, forbidden, 90
TBEES,
application of Land Law to, on Mirie and Mevkufe land, 160,
364
cutting of, in Baltalyk " woods and forests (A. Metnike), -
devolution of Mulk, by inheritance, 32, 308
exclusive right "6f owner to graft, 14
fruit, provision* as to, 14, 15
inheritance of freehold (Mulk), 32, 308
non-fructiferous, provisions as to, 14, 15
ownership of grafted, 14
preferential right of owner of, as to site of, 36
sale of freehold, on land held by Tapu, 25
when they go with land sold and when not, 25, 300
f
394 Index.
TRESPASS,
{provisions against, 9, 10, 18, 66, 285, 286
UNCLAIMED LAND. See MAHLUL, OUTLYING LANDS.
f
VAKF (DEDICATION),
aboUti'on of racial disabilities of Arable Vakf lands, 259
application of new law to mixed Vakfs, 174
application -of procedure to Mukata Vakf sites, 167
avoidance of delay as to title-deeds' of, 265
certificates .for, not to be issued in respect of other kinds of
land, 192
classification of Vakfs (Mazbata and non.-Maz.bata), 198
disposal of, upon failure of heirs, 200
exempted non-Mazbata Vakfs, 204
Ijaretein constitutes . the essential nature of Vakf property,
365, n. 3 to XII.
inheritance of, 199, 203; 204
issue of new title-ujed as to Vakf land, 143, 249, 360
Mazbuta Vakfs, administration of, 198
r-, alienation of, 203, 204
-, devolution of, upon death, 199
;..'' : '' 1 .: extension of inheritance of Musakafat and
Musteghillat found in, 172
Mukata Vakf, regulation of Musakafat and Musteghillat the
sites of wjiich areV.247
Mulhaka Vakfs, permissive character of law of inheritance as
to, 257
notice as to the issue of title-deeds for yakf property, 143,
360
of Sultans, extension of inheritance in, 17^
only plenary owner can make land Vakf, 65, 345 ,
registration of, 191
separate rent for each, 246
separate title-deed for each, 209
title-deed as to, preparation of, 207-209, 249, 261
VALUATION,
mode of, of land, 93, 187, 205, 247
Index. 395
i, 21
VII..
carried out at headquar
each village is subject, 97
sional officers, 126
visit, 187
icii form a division, 126
VINEYABDS,
devolution . former, 44, 317
disposal of sitevS of former, 44, 317
law for protection of, 66, 348
ownership of, made by deceased owner, 43, 315
provisions as to, 18, 14, :
sale of, of infant, lunatic, &c., 27,
sale of freehold, 25
WASTE LANDS,
gran: . in certain ca?es, 141
lav. ^tprppriation of.
occupation of, 141, 142
permission of land ,oiiicer necessary before occupation, 141, 142
tithe not to be taken upon certain, for one or two year<.
title-deeds of.
WATER,
preservation of ancient rights as to drinking, irrigation, &c.,
65, 348
WIFE,
descent to, or her kinsmen, 32
devolution of lands upon, 32
9
396 Index.
WJF
jiua-i. in house by husbai;
-twccit husband and.
IDS,
ST in Baltaly^: ( ), 48
te on value of, when new title--.' ied, 9J*
iwful cutting of, <6i ' 9f ^^^.,
\ILAQ). fi
MA,
inak :
3TEB,
kei-i
making of, 23L'.
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UNIVERSITY OF TORONTO LIBRARY
Turkey. Laws, statutes, etc,
1165 The Ottoman land code
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