What is the ruling when a claimant proves his deceased father left property, a known absent heir, and no other heirs, but the current possessor denies it?

General Chapter

Al-Mughni

Book of Claims and Evidences

Book 65 · Issue 1 · Bab 1

Open in Qurani

Primary text

If a person claims his father died leaving him, an absent brother, and no other heirs, and this property is in the possession of another man who denies the claim, the property is established as belonging to the deceased and is seized from the possessor. Half is delivered to the present claimant, and the other half is placed with a trustee for the absent heir, to be rented out on his behalf. This applies equally if the claimed item is movable. Shafi'i holds this view. The basis is that the property is an estate of the deceased proven by evidence, necessitating the seizure of the absent heir's share, similar to movable property or if the absent heir were a minor or insane. Furthermore, dissenting opinions cause harm, as the absent heir might be unable to present proof later due to witnesses dying, disappearing, or losing credibility.

Supporting text

Abu Hanifa holds that if the property is not movable or is not feared to perish, the absent heir's share is not seized from the possessor, analogous to a partner claiming their share in a property held jointly with a non-heir stranger, where only the claimant's share is delivered.