What is the ruling when the deceased's religion is unknown, and he leaves a Muslim son and an infidel son, each claiming the father died adhering to his religion?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
The inheritance belongs to the infidel. This is because the Muslim's claim necessitates assuming the father was originally Muslim, making the infidel brother an apostate, which contradicts the apparent situation. Alternatively, if the Muslim claims the father converted from infidelity, he admits the foundational position held by his brother, claiming only its cessation; the original state prevails until its removal is proven. The statement that Islam prevails over disbelief only applies when Islam is established; here, the origin of disbelief is being asserted.
Supporting text
The view of Abu Hanifa suggests the inheritance is split equally, similar to two parties disputing possession of an object. A position held by Al-Qadi suggests that if the estate is in their possession, it is divided equally; if not, lots are drawn, and the winner swears and takes possession. Another view suggests the matter should be suspended until the father's original religion is known, or they reach a settlement, which aligns with the position of Al-Shafi'i.