What is the ruling on disputed property when the property is in the hands of a non-claimant and the claimants have no proof?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If the property is in the possession of a non-claimant and the claimants have no proof, the claimant of all receives half because no one else claims it. The remaining half is settled by drawing lots among the three claimants. If the lot falls to the claimant of all or the claimant of half, he swears an oath and takes that share. If the lot falls to the claimant of a third, he swears an oath and takes the third, and then lots are drawn between the other two for the remaining one-sixth, and the winner swears an oath and takes it.
Supporting text
If every claimant provides proof for their claim while the property is held by a non-claimant, the claimant of all receives half based on the previously mentioned reasoning. The excess one-sixth is disputed between the claimant of all and the claimant of half, and the full third is disputed by all three. If the proofs cancel each other out, lots are drawn between the disputants for what they contest, and the winner swears an oath and takes it, resulting in the same ruling as if they had no proof. This is the opinion of Abu 'Ubayd and al-Shafi'i when he was in Iraq. According to the narration that states conflicting proofs result in dividing the property among the claimants, the claimant of all receives half plus one-sixth of the excess over the third, plus one-third of that third (resulting in 25 shares out of 36). The claimant of half receives one-sixth plus one-third of that third (resulting in 7 shares out of 36). The claimant of a third receives one-third (which is one-ninth, resulting in 4 shares out of 36). This structure follows the analogy of Qatadah, al-Harith al-'Ukkali, Ibn Shubruma, Hammad, and Abu Hanifah, and is also a view held by al-Shafi'i.