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Full text of "The Ottoman land code"

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. 



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against 



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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) 

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wrsIi.Ira.WTL -;ci :bi ^r.Ti^ .ii.dizarL..:E. $ 1. IZSIL ' 1 : 1^ -t pr. ; 

- - 
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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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