What is the ruling regarding evidence presented by an absent owner?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If the absent person presents evidence that the property is theirs, there are two views on whether judgment should be passed based on prioritizing the evidence of the outgoing party versus the incoming party. Similarly, if the absent person presents evidence proving their ownership and its proceeds, or the cause of ownership, there are two views on whether this evidence is heard and a judgment rendered based upon it. If the person who made the initial admission (the possessor) has evidence proving ownership for the absent party, the judge hears it but does not rule on it. This is because the evidence supports the absent party who has not asserted a claim themselves, nor through an agent. It is heard only to remove suspicion from the present party and negate the requirement of an oath against them if the claimant had alleged the possessor knew the property belonged to the claimant.
Supporting text
It may be ruled that the evidence should be acted upon if we prioritize the evidence of the incoming party, or if the depositor (Mawdi') is permitted to litigate concerning a deposit that was wrongfully seized. Since the evidence is validly heard, judgment should be rendered based on it, similar to the claimant's evidence when unchallenged. If the possessor claims to hold the property under a lease (Ijarrah) or loan for use (A'riyah) and presents evidence establishing ownership for an absent party, judgment is not passed based on this evidence for two reasons: first, establishing the lease or loan depends on proving the lessor's ownership through this evidence, which is not yet established; second, the evidence of the outgoing party is prioritized over the evidence of the incoming party. Judgment can only be based on this evidence if we prioritize the evidence of the incoming party and if the present party has a right therein, in which case judgment is passed unanimously.