Fatwa No : 80974
Buying the entire land without the owner's permission

Buying the entire land without the owner's permission

What do the honorable scholars and respected muftis of Islamic law say regarding the following matter that a land deal took place between Zafar Ali (the son of Sharifan Bibi) and Alam Din for a piece of land measuring two and a half (2.5) Kanals. The original owner of the land was Sharifan Bibi. When she was asked, she only gave consent to sell two (2) Kanals and was not willing to sell the remaining ten (10) marlas. When they went to the Patwari (land officer) to give a statement, she again agreed only to the sale of two Kanals.Sometime later, it was found that the land was not transferred to Alam Din due to the absence of Sharifan Bibi’s photograph. This deal between Zafar Ali and Alam Din for the 2.5 Kanals had been made secretly, and although Sharifan Bibi was aware from the beginning that the deal was for 2.5 Kanals, she agreed to sell only two Kanals. She was told the agreement was for two Kanals only.Now, after eight years, Mr. Alam Din is demanding the entire 2.5 Kanals, while Sharifan Bibi remains firm on her original position of giving only two Kanals. Zafar Ali had taken the payment for the full 2.5 Kanals.
Is Alam Din’s demand for the full 2.5 Kanals justified? And is it correct for Sharifan Bibi to claim the remaining 10 marlas?
Note: This agreement was officially documented on a stamped paper.

الجوابُ حامِدا ًو مُصلیِّا ً

In the given case, if the statement of the questioner is indeed accurate and based on truth that the mentioned land is owned by Sharifan Bibi, and she clearly agreed to sell only 2 Kanals while clearly refusing to sell the additional 10 marlas then the transaction is valid only to the extent of 2 Kanals and not beyond that.
Therefore, it was not permissible for Zafar Ali to enter into a deal for the full 2.5 Kanals without her consent. He is obligated to return the payment received for the extra portion and annul the sale with regard to that excess.

مأخَذُ الفَتوی

كما في الدر المختار: (من يتصرف في حق غيره) بمنزلة الجنس (بغير إذن شرعي) (إلی قوله) (وله مجيز) أي لهذا التصرف من يقدر على إجازته (حال وقوعه انعقد موقوفا) وما لا يجيز له حالة العقد لا ينعقد أصلا. (5/ 106) ۔